man named dan smith mr smith was the was the owner of d t s kind of the buck stopped with him so to speak mr smith hired and trained folks that were known as recruiters so these are the folks that would go out into the community would go to the mall would go to restaurants and find folks that look like perhaps they needed durable medical equipment because that's what d t s was in the business of providing durable medical equipment things like scooters will chairs powerful chairs and so folks like robin hagar who was also indicted him prosecuted in this case i would go out in the community and find those people gather up the information to process a claim and send it into the office and that's where the work as the bill or at the office i think in terms of contexts a couple things are important number one mr smith again was the owner and had control of the t n c is where the bu and number two he trained those recruiters and the record shows that miss hitler was the one going out into the community she's the one gathering information on doctors prescriptions doctors information and is the one who told those folks that she make contact with i can get you durable medical equipment and if you don't have the right doctors information i sure you can still get it and all that comes to a head when you look at the testimony of the government's kind of star witness there complaining witness at the trial the woman by the name of the show cleveland an unfortunate turn of events for robin hagler she goes to a restaurant approaches the cleveland's mr cleveland appeared that he might need some sort of piece of equipment she's give her speech to him hey i think i can get you a piece of equipment including if you don't have the right doctors information unfortunately michelle cleveland had worked in the billing world for about twenty years and she knew that's probably inappropriate you should be making that promise on want to contact the authorities and so our case begins at trial though ms cleveland said that it would be absolutely appropriate for a bill or such as yourself such as kelly to rilla torah law in good faith on the information being submitted to her by way of a recruiter out in the field the person who actually makes face to face contact with a potential client and so what you have is a scenario where the record evidence is that folks like robin hagar are the ones that are sitting down talking to face to face with the potential client saying give me that doctor's information give me who your doctor is give me the stuff that i need to see if you have that perception that would justify ordering the equipment and then submitting a reimbursement and the testimony was also that if robin hagar couldn't get that information number one she assured the end client that hey i'll still get it for you anyway and number two if she ran into problems she turned to dance with not julie to rely on and so the real question here similar to some other recent cases out of this court i think particularly the what is the thing that kelly to ryland did that an innocent person would not do because i think it's also important to note that there were other recruiters robin hagler focused her efforts in the waco area and that's really where they allegedly fraudulent activity occurred d t s is located three hours away near san antonio d t s had other recruiters the testimony was that for example one more month pereira's was focusing her efforts as a recruiter in the san antonio area and she was processing are submitting legitimate claims to the ts and so where's the distinction there was no evidence that there was in a sting sion miss kelly to really receives a report the forms from hagar as opposed to present what is she doing differently and processing that and looking at the form and saying ok this is the information that was provided to me by the recruiter i'm going to send off an order form for my quit and want to submit it off to medicare to get i think you should do the same thing that frankly the government did not put much weight on i mean as a set up in my brief you know to me if you had a confession that was a strong confession you put it up on you put it up on the ammo you put it in a presentation you beat the defendant about the head and shoulders with that confession in some way that's not what the government did the government had several hundred pages of documentary evidence sa base of testimony and it's just kind of buried up to you also confessed and i think as a set out in my brief in your honour's if you look at that i don't know that it's a confession i truly don't believe it's a confession if you look at it that is a cooperate and avoid some of the consequences that you modern was face and she provides a statement and says basically in hindsight i should have been more vigilant well that's that's a pretty reasonable statement that is not to say that at the time that she was presented with any one of these claims she knew this information is bogus and i'm going to send it off to medicare anyway and that's what i would say is if you read that confession closely that is someone who has been asked by a law enforcement officer look we are investigating this and it turns out a lot of these claims at least in the government's opinion were not valid what you have to say about them was the person who submitted those claims sure she's going to say i should and i think that's the word she used i should have been more vigilant but not that i knew at the time and that's what's required to support to support a conviction on any of the counts in this case essential is this your honor i mean you have four different counts you have twenty one counts four of them are four different types of often says aiding and abetting in health care fraud conspiracy to commit health care fraud false statements aiding and abetting in false statements of health care for audit an aggravated identity theft aiding and abetting an aggravated identity theft because the claim is that doctors information was used without their permission and i think each one of those requires while they absolutely require a proof of an appropriate mens rea each one of those has an intent element that either requires that the defendant intentionally join in the criminal activity or knowingly join in the criminal activity and course for all of the aiding abetting often says not only that they have to do something that furthers that out not only joins in the principal's criminal activity but seeks to further now i think the language out of gandhi on that point is as especially important which is you have to show you don't lightly infer a criminal agreement or joining into a criminal enterprise bock conspiracy or aiding and abetting you have to show the person did something that they would not have otherwise done something that is not  otherwise innocent conduct so i think the government took the position at trial presented a handful of theories that were centrally you know kelly to relive the forms that left your office had toting on them that reflected equipment that was either not actually provided or was inaccurate or that included doctors information that was not accurate because the testimony was essentially this a handful of doctors or their custodians of records or both testified that yeah we did we didn't issue that prescription or a handful of inpatient said i didn't get that scooter or i got something different none identified ever meeting working with being contacted by kelley terrella and so the implication was essentially this well that paperwork passed through you you received it and then submitted it and so you must have been in on it but i think it's one thing to say that if there were some proof that she knew the information was false was billing for  electric wheelchairs when what they were delivering was scooter's and she knew that i mean the person who's doing the billing would know that she certainly that's certainly evidence that she knew that something bad was going on or your honor first i clarify that that is eight of the twenty one counts and so that would you know that would potentially you know your conspiracy your aggravated identity theft those would still not be supported by that evidence and the secondly i would say that the fact that scooters were delivered when will chairs were built for is not is not is does not show her knowledge things get missed illiterate all the time amazon doesn't have one hundred percent track record of getting me the thing that i actually ordered the evidence at trial was that hundreds potentially thousands of cla were made were processed through d t s and the government can find eight where the delivery was not the right piece of equipment and i think again the context of what this is matters this is not some sophisticated operation that had an inventory tracking system that said well i placed an order for this and i'm supposed to send this specific piece of equipment off if you look at the evidence the exhibits on the inventory tracking are literally a word document where  would go up in the left corner and click insert table and just hand fill in the orders and so to say that she got a few wrong over the course of almost five years and hundreds of claims i don't think necessarily says that she had criminal intent and i think also that's kind of one of the lessons of gandhi is when when the government takes the position that you are such a mastermind that you can manipulate the medicare system and then kind of lead people into doing that along with you it can also take the position that you were that careless that reckless that foolish and sometimes the the innocent and simpler answer is the answer and i think that's true in this case this this is not a an operation where for example you have screens that are popping up and saying well this order was placed fill that fill that shipment i just i think when you put it in the context of this little sha down to this you know beyond that those counts and beyond that theory of well a few of the order for wrong of the counter supported by the doctors informational forms that were  were also wrong in that the per script and supported a power wheelchair instead of a scooter and to do that it indicated that the doctor had prescribed the power wheelchair and in support of that the doctor's name or  but again the evidence was that it was robin hagar going out and gathering doctors information and so there's no connection between where that information came from and missed to relive being the source of that clue included a space for the doctor's information so the most logical inference to drawing here is that robin hagar gather that information and when she could get sufficient information consistent with the testimony at trial she fabricated or found some way to get it that wasn't legitimate and then sent it off to kelly to religious who in good faith relied on it and again according to the government's own complaining witness that would be absolutely appropriate under the circumstances are that true there were times when she ordered some lesser form of equipment like a power scooter even though i'm sorry it ordered a lesser form of equipment like a power skater less expensive even though the medicare documentation was it's for a power wheelchair more expensive but that goes to my response to judging a moment ago which is sometimes that's going to happen i think if you look  hundreds thousands of claims over the course of almost five years and so the same stakes happen no of course mistakes happen and the other thing is this if you not only is the the inventory system relatively unsophisticated if look at the order forms they're separated by days of not weeks and so for there be some mix up between what's ordered and what's admitted to medicare sure that i think there's absolutely mistakes happen and again my basic point is this i please the court zachary richter from the united states the defendant confessed that she knew she was submitting fraudulent claims out the time she submitted them her confessions were sufficient to support the jury's findings of knowledge in intent now during the opening presentation we only discussed the written confession that miss kelly two really provided to the f b i but there's also reflected in the record at he's fourteen  four an oral confession to an f b i special agent where she made clear that she knew at the time she was in that in the claims that those claims were fraudulent in addition for her written confession she stated i knew approximately one thousand claims to be fraudulent construed in the light most favorable to the verdict that is plainly sufficient to support the jury's findings in this case both the written statement and the oral statement were presented to the jury a trial  before she wrote out her written confession how many of these claims were fraudulent and she said all of them and when you look at this this is not a matter of a a few scattered mistakes we're talking about someone who was the sole biller for this business and build over seven hundred wheelchairs and zero power scooters yet as her counsel just pointed out she was ordering power scooters at the same time many of them and she was also the person who was not only making the orders but handing off these delivery lists that list scooter scooter scooter going off to medicare beneficiaries that she is billing on behalf of when she's billing medicare she's going for the more expensive power wheelchair but then she's providing the power scooter not a few times but many many times in her confessions reflect a thousand fraudulent claims so there may have been more fraudulent claims in there that weren't directed necessarily medicare medicaid but there were also other aspects to this fraud which would have been abundantly clear to relet she build around seven hundred eight hundred times for elevated lay grants that can only go one hour wheelchairs and she only ordered about one hundred fifty of those actual leg vests and she was billing many many hundreds of times for equipment that she hadn't ordered nearly that many times on top of that as joanne observing her question in many cases she said that the quit was provided weeks before the equipment had even left the benefited from you know this in other words and that's just it was an element of it that was there some evidence or some showing there not only did she do it but somehow she derived the benefit directly or indirectly from it or as a gay she's urging you know i just had a job and i just did this and i'm so cool and yes your honor and in your you're right to point out that it's not an l that we have to show however we did show that  bank records were traced showing the flow of the medicare funds into several bank accounts associated with members of this conspiracy miss kelly to reload received about one hundred sixty thousand is a thousand dollars and then she passed along about thirty thousand dollars of that that's over the course of approximately eighteen months so over eighteen months she's getting about one hundred thirty thousand thousand dollars that's consistent with the same in out that was  prefer it's also many tens of thousands of dollars more than any version of her claim salary at some points for instance in the job out of patience she submitted later she said her salary was about thirty eight thousand dollars at some point she said it was about four thousand dollars a month so forty thousand dollars a year on any account of what her salary was she was it was receiving tens of thousands of dollars more than that and not only that she was taking the money from one of her coconspirators and transferring it to other members of the ts which shows that she's really one of the nerve centers of this operation she's not only the sole biller she's not only involved in hiring but she's also the person who's doing the ordering and handing off these delivery lists and when you look at that hole in the operation it's comparable to the role in operations like grant or will it where this court's not the evidence sufficient for a jury to infer knowledge and intent in a health care fraud conspiracy what other or we have a confession to put corroboration of the confession such as perhaps what you just say it was or other cooperation corroboration or was there a testifying witness one of those who put guilty that evidence was in support of you know the confession perhaps what you just said about the money i take it that one element one aspect right that's right your honor so the confession all the circumstantial evidence i just mentioned where you know that she's billing for items that she couldn't possibly believe that that this organization was providing wheelchair scooter swap leg rest the fall states there's also the alter prescription form that's in the record and was presented to the jury there was a prescription that was provided by a doctor's office the doctor's office that the records keeper for the doctor's office testified that that was sent to the office where ms kelley to all of us working this is hardly a huge office there's two or three people she's the only person who's really doing the billing there she at that's in the fax arrives at that office it is an on the prescription and then it was faxed with miss kelly to elicit nature to medicaid claiming that a power wheelchair and multiple devices related to the use of a power wheelchair so all of those things combined as well the power wheelchairs and power scooters that this company ordered when medicare came back to this company and said we need you to provide proof that there are these prescriptions exist instead of providing think certainly substantiate the jury's findings when you look at especially when you look at it in the light most favorable to the verdict briefly on the case of course and dungy there was no confession and that's a clear distinction between the two cases also in ganji there were two separate practices geographically separate practices in the defendants in gone she had no way of knowing that as a separate practice elsewhere it was operating fraudulently but in every one of those claims to medicare and medicaid she indicated that there was a luminous supporting documentation so every doctor that testified said that if you want to get a power wheelchair you need to loomis supporting documentation for that prescription and so there should have been many many many pages of supporting documentation yet there were none of that ever found and the amount that there were some documents burned there with there were enough to and it's burned to potentially substantiate that so we're talking about someone who has never shown that she operated in good faith there's no sign here and there is no presentation by the defense there is no evidence provided by the defense that she ever relied on any piece of paper or any fraudulent prescription  faith and in fact there's actually no evidence in the record of any legitimate claim if you look at the record citations provided by the appellant in her briefing pages twelve thirty one and thirty two that was a somebody testifying that they tried to find legitimate people they just didn't have prescriptions for these kinds of services for these kinds of devices and when they did have when they did ask for these kinds of devices they were provided scooters instead of wheelchairs and not provided with the elevated l lateness and so forth so we're not talking about a handful or just a few things or instances where mistakes happen we're talking about a repeated systemic system not a fraud that happens tens hundreds of please the court stand full of things i'd like to address them one maybe it was relevant conduct that there were seven hundred to a thousand false claims ultimately at sentencing the government cho to advance eight counts based on the provision of a scooter as opposed to a wheelchair and that's when the way this case went to trial and so the idea that somehow that supports a conviction now that's not what the jury he person be motivated be part of a criminal enterprise and the response was well she garnered one hundred thirty thousand dollars i would add to that she worked for d t s for almost five years i thought he said that was over an eighteen  month but there was no evidence that she garnering benefit above and beyond that and so her the government's evidence at trial was that for five years of services she received well i thought i'm sorry i thought the kept the dollars was confined to hundred thirty thousand dollars for that runs perhaps and then but my point is that's not outlandish that's not outlandish for someone who the government says helped a four point eight million dollar company and was their nerve center to make as a legitimate know evidence and here and all that she had a salary from this out i believe i don't believe there is any testimony about the salary at a trial and so the only evidence that we have is that these transfers it was somewhere in the three to four thousand dollar range but my point which is b of the that the government analyzed her bank account and it and its proof didn't show anything above and beyond or in addition to these transfers then  received i think the other thing is this the discussion about the altered form not my question would be how does that matter again the evidence is that these forms are coming in from robin and so there are some distinction with the dates or the addition of the prescription did robin hagen read that or to kill a trail at that because that's no different than any of the other examples where we concur we agree design mean that she's supposed to know that it's not fraudulent that the perhaps the doctor made a mistake and water down or that hagler doctored it up and the other thing is this the you know to say that she had some criminal intent because they're not documents supporting the things that she did laying around dance myth burned everything when he found out about this ron and so for to kind of prove a negative here is is what the government wants to really do go show us the documents that would support all your claims well the guy who everyone says was the ultimate decision maker who was the fixer one had later ran into problems out in the field what he called wind of this prosecution this investigation he burned everything and so she can go show you what the forms were and what her support was and so these issues about well what was actually presented to her first what she set out be i'd be glad to try up but that's just not available to her and so it was a government burden to prove that through other circumstantial evidence and ultimately the very clean and simple truth of this is that robin hagar operated and said to folks i will get right well the court really really really really appreciate our c j counsel and you are very representative of extremely high quality a representation provided in a case nobody would know that you didn't try to case below so you they're well prepared and you briefing an argument to us and we really do appreciate lawyers such as yourself who take the cases in who break them and represent their kind of clients well and i want to