withdrawal defense those are the words of the trial court yet during the cross examination of mr van zig the prosecutor inserted his own reputation and personal standing and put it before the jury he also improperly referenced the convictions of coconspirators and used in a manner to use it is affirmative proof of miss foster's guilt and to undermine mr dancing's credibility he referenced people convicted at trial people who reached plea agreements with the united states people who had made it guilt that don't have plea agreements with the united states in cross examining mr dantzic to try to show the jury that he was a pavilion and asked for her assistance to meet an investigation by the united states miss foster told him that she would have nothing to do with it and that she hated karen kalends irving i think for my part i think you've got a strong argument with regard to what happened during mr dan's examination but with regard to the convictions wasn't the jury going to learn and didn't learn necessarily that these witnesses w testified had been convicted and in part because of their role at pavillion i mean wasn't that going to wasn't that going to come out and didn't in fact come out no matter how the prosecutor characterized it it it did come out judge jordan and it had come out prior to that and that was an issue that was raised with the court however the manner in which it's used in i would direct the court's attention to miranda one of the cases cited in the briefing in this case the manner in which it was use this is evidence it was properly admitted for one purpose it was put to use for a completely improper purpose which was to say mr danziger i'm sorry just walker you look like your hand it to say to mr danzig his presentation to the government was a lie that he was trying to obstruct justice and we know this because you can look back and see all of the people who were convicted at other trials by plea agreements and without plea agreements so it was the use of that testimony which is exactly what happened in miranda and then couple that with the arguments that were made for example keith humes convicted of multiple felonies judge yet in closing argument the prosecutor doesn't talk about mr humes other felony but doesn't  i thought your client didn't question her involvement in the conspiracy she just claimed that yes she was a member but she withdrew earlier and before the statute of limitations and so all of this went to the went to the question of arguably contaminating somehow that the finding that there was a conspiracy but everybody played young tea to this conspiracy and presumably and your client doesn't really den conspiracy her participation the conspiracy judge walker i think what the court's question implicates is the concession that i've made in this appeal that there was adequate proof of the conspiracy right however i will say a trial a fair view of the record establishes that there were two components of the defense one was withdraw all and the other was to challenge the weight of the government's evidence of the sufficiency and i think that a fair reading of the record shows that that was a strategic decision made to help so killed and i don't think the government ever argued directly that this was proof i mean you know you can say well the jury would have would have respect inclusion but if they did that have to ignore the court's instruction and the government in deferment really try and prove it prove the guilt of your client through through these witnesses having pled guilty well i think judge walker this turns his back to miranda which is a case where it was reviewed on plain error review and there was a limiting instruction that was actually instruction given by the court in that case where they were told don't don't pay attention to what happened in these other trials and even on the highest standard planar review the court reversed the convictions in that case and said it was improper to use what would have come improper these convictions of coconspirators that was used in a completely improper matter but when you couple that with what was really going on here and the word that is used in the record is vendetta prior to the prosecutor's examination where he says the allegations i made about you in another district court room to the witness when you couple what was going on which was this personal contest between the prosecutor and the witness miss foster's key witness the only witness that was called on any substantive basis in this case to establish the withdrawal you get a broader picture of what was going on and what was going on here was an effort by the government a calculated effort by this prosecutor to demolish this witness by putting the prosecutor's credibility on the line he said the court meaning another district court no evidence in front of th about it want to follow up on the allegations that i made about your obstruction that was objected to and overruled that being the fact of this all happened   interview was in two thousand and eight november right however a tight end to the two thousand and five resignation letter i know i understand that but the question of resignation or withdrawal has already been decided by this court correct no i don't i don't believe in the standard that's under review now it has been judged that the court determined that the trial court error and granting a judgment of acquittal i that was viewing the evidence in a light most favorable to the united i however there's no there's says that the error it is your point is it was a jury question and this affected absolutely affected how the jury decide and all of the cases that deal with these issues your honor tell the court to did novo review the entire record the way the error to determine whether it was harmless and what miranda says is they say the harmless error standard only operates to excuse air to excuse error which we have here where evidence of the defendant's guilt is exceptionally strong now in this case miss foster and this is a consideration that the court needs to weigh miss foster had the burden of preponderance of the evidence a slight burden to carry in putting forward her withdrawal defense and this man's testimony was central to it and his credibility was central to it if the jury had believed what aaron danzig had said they could have found withdrawal on any of the three act because the question that was presented to the jury in closing and still stands when you review the record what did she do after november of two thousand and eight to continuing this conspiracy nothing and then in two thousand and nine in march you have a meeting with an f b i agent were judged all phenomena although reversed by this court previously reviewing that evidence said that was sufficient so you have a district judge even though the court found on the standard that it was rude even then coming in and saying hey this withdrawal defense was substantial and it acquittal court viewing it in the light most favorable to the government disagrees here i don't have that problem the courts review is did no go and the error was not harmless what was the evidence of her affirmative of two thousand and five ceefax a resignation letter to hollywood pavilion which was found when they executed the warrant on the desk in the office of the simply leaving a job doesn't necessarily mean you're you're out of a conspiracy that's judge walker that's correct but in this district there's a case morton's market which has been discussed and it comes up in another one named berkman where the a resignation and in areas where resignation that is communicated when it's an act on behalf of the defendant who's asserting the withdrawal of the fence where it's communicated to the coconspirators in a manner that's reasonably calculated to reach the coconspirators in other words i'm out you can't count on my services any more is withdraw all and they were reversed in areas where the instruction was given based on that evidence in mornings market when a man sold his business by the way as miss foster did in this case simply that her salary had been lowered or her salary had been lowered and she didn't like didn't like her boss and now your honor you're highlighting the issue here because with aaron dad six testimony when he came in and said in two thousand and eight this is what she said to me she compared the c e o to freddie krueger so she left because she unlike her salary under this court's precedent that's enough as long as they didn't fire her it's an act on her behalf to leave but in zero eight if the jury believed what she said to mr dancing it explains that the part or it says no i want nothing to do with these people because i detest them i view her as a nightmare from a different from saying i didn't want anything to do with these people because the irrigation conspiracy and i no longer want to participate in a well that she doesn't have to say that example morton's market your hon this court found as a mater of law this is the sale of a business in a price fixing conspiracy just the sale of the business it was published in the newspaper was enough in areas dr sir dewey sent a letter not to the coconspirators to say he was out but to medicare saying hey i'm no longer taking patients for first option and that was sufficient nowhere in the letter did it say i don't want to be a part of this conspiracy but when you have the two thousand and nine statement where she goes in and she highlights the medicare fraud that was being committed at hollywood pavilion it further explained so five letter and the oh statement to mr dancing and the overriding point here your honor i'm well past my time and i apologize is that the defense was strong and the improper questioning the prosecutor destroyed mr vance its credibility because he placed the office of the united states attorney against this witness is credibility in front of the jury over objection i have before you sit down i just wanted to complete one thought he said there were two things demonstrating her disavowal one was the resignation letter is the other one her conversation with mr vance and yes your honor but that and then the third is not i guess on in this court's precedent you would call it a disavowal and then you look to the second part to see what was it was a communicated or was it to law enforcement and that disavowed was communicated to special agent durango in march of two thousand and nine when she told him about the crimes including patient brokering and providing services that weren't necessary recycling patients i mean words frankly that the government took and placed in its indictment in this case good morning may it please the court william glasser for the united states i'd like to begin briefly by contextualizing mr dancing's testimony in this case mr dancing was primarily called as a witness for the codefendant at trial dr kapil wittes and he was extensively examined on direct examination by kapleau is his attorney in an attempt to establish the or and or insinuate to the jury that there wasn't actually anything too serious going on hollywood pavilion and therefore dr caplan what's wouldn't have noticed the fraud that was going on the the direct examination by miss foster's attorney was only eleven questions and was simply to establish the one fact that when called by mr danzig in fall of two thousand and eight she said that she did not want to assist in the internal investigation of hollywood billion because she quote hated karen killings are the one who who ran hollywood villian so mr dancing was called for a very limited purpose and the government recognizes that that potentially incrementally supports her withdraw all the fence that she hated the person who owned and operated a hollywood pavilion but it's only incremental and therefore the the cross examination and the undermining the credibility of mr danzig did very little to undermine her withdrawal defense and then if i may turn to the strength of her withdrawal defense to some extent we're for before we do that that get that gets to whether or not there was any error and whether or not any error was harmless or not but i'll grant you that given mr dancing's testimony on direct examination the government was entitled as a judge all to naga recognized to try to show that his investigation had been very shoddy and that he couldn't be trusted as a witness with regard to whether anything nefarious was going on in hollywood pavilion i'll grant you that if you are but i've yet to see any proper justification for putting before the jury the prosecutor's direct personal accusation against mr dancing before a district judge evidence of which was not in front of the jury and then suggesting to the jury that because the judge wanted to sort of follow up on it and look a little closer at it that that indicated the prosecutor was right and that mr dancing if he didn't commit obstruction was very damn close to committing obstruction that's wrong right your honor i would have i would agree with you that if this really is something that was irrelevant and probably should have been in front of the jury this personal contacts between contest between the veracity of that prosecutor in a different hearing where a judge has made comments and then put the imprint tour of the judge's comments on the prosecutor's behavior to show that the prosecutor who's doing the cross is more believable than the witness who's testifying that is can't be done right your honor i completely agree with your concern but again if i may have explained the there were no objections earlier in the cross examination to the questions about some of these obstruction allegations the where really came to a head was right at the end of the recross and i could direct the court's attention to what exactly was said there were there were two questions about the specifically about the judge in the prior case the judge whether that judge wanted investigation the first question was that was let's let me make sure the court in that case did not dispute the allegations that i made about your obstruction did they or did it at that time the answer came out before the objection mr danzig said i was not in court to respond at that point there was an objection and the only question after that the court sustain the objection to the second question was mr danzig the fact that the court entertain that discussion and have follow up shows that myla geishas of your obstruction which you object to were not demonstrably false correct and the court sustained that objection so at that point there was no evidence before the jury other than that  answer you know but you know every once in a while the asking of the question can be bad enough your honor i recognize that i mean there was an instruction in this case the district court specifically told the jury that questions or anything that was said by counsel was not evidence and again there is the objection here the objection is the claim on appeal is one of prosecutorial misconduct and certainly i would concede here that this this probably isn't something that ought to have been brought to the jury's attention however whether rises to the level of misconduct particularly misconduct that affected the fairness of the trial is a completely different question we're talking a centrally i think this is come down to those two final questions at the end one of which was never answered and to say that that specifically under the plain error standard to say that that affected the fairness of the trial to the u s i think there's a third question isn't there the question and the court wanted further investigation into your obstruction your obstruction mr danza after my comments about it to the court correct and then you know the one that she read the court and the fact that the court entertained that discussion and had to follow follow up shows that my allegations of your obstruction mr ganns of which you object to were not demonstrably false and then again the the court in that case did not dispute the allegations that i made about your obstruction and there were there were a couple of objections to that series of questions you're on or yes there there were objections  cross examination there were prior i would agree with you though there were prior questions regarding obstruction of justice and the the it was it was appropriate for the prosecutor to attempts to undermine mr dancing's credibility now whether or not actually but not but it's not just and again this isn't go to the question of whether or not the error was harmful but it's not just equal weighting or putting into evidence somehow the district court's view of the whole thing it's putting the trustworthiness of the prosecutor against that of the witness i'm not saying he couldn't have asked him questions which might have led a jury to believe that he was guilty or was involved in some sort of obstruction but you can ask those questions without inserting yourself and i don't mean you inserting yourself as the prosecutor in a contest for veracity with the jury absolutely your honor i think you can however in this in this instance mr danzig was the one who specifically said that the prosecutor's accusations were demonstrably false and actually if you look at the transcript it's kind of funny that before before the prosecutor asked these questions in your honor when the prosecutor asked about obstruction of justice but mr danzig on redirect examination had talked about demonstrably false accusations that have been made in the prior case and the prosecutor in this case it was whose name was mr warren was actually attempting to clarify that those accusations had been made by another prosecutor mr zink and when he did so that's when mr danzig said no you actually made demonstrably false accusations against me but he's clucking himself in you know the the in the authority of the court you know the the verb sees the court in that case did not dispute the allegations that i made about your obstruction the second one is the court wanted further investigation into your obstruction after my comments and this is another court that's not there and then the third question the court entertain that discussion and ha follow up showing that my allegations of your instruction were not demonstrably false so he's speaking for the court and which i think you agree with me is improper your honor it would be improper for him specifically to speak for the court i mean with it but are you disputing that he was speaking for the court your honor i did he was he was simply asking a question with and i mean certainly questions as judge jordan pointed out sometimes focusing i think we're all almost all in agreement here that this was a problem you've basically conceded as much would you focus on why this wasn't why this was harmless error or wasn't prejudicial to the outcome yes your honor and in fact the as we explained in the brief the prosecutorial misconduct allegations i think are reviewed for plane air because although there were objections to the question there was never at any point  a claim of prosecutorial misconduct which is a different rather than an evidentiary objection it's something that requires a motion for mistrial but it was harmless again as i began my remarks because mr danzig first of all was not a key witness for miss foster on direct examination she merely asked him those questions to establish that she had communicated her distaste for the own sure of hollywood pavilion the so even if the jury had completely disregarded all mr danziger testimony the evidence would have been sufficient for the jury to and in fact overwhelmingly showed that miss that miss foster did not withdraw all from withdraw from the conspirator saying that the evidence relating to the withdrawal defense would have been affected by this correct your honor it was it was weak evidence and i understand that the district court concluded based on the in the prior case that this court reversed and concluded based on her disclosures to the f b i that she withdrew that really hasn't been the focus of her or argument on appeal primarily she's been focusing more on the letter that was sent to hollywood pavilion that fax letter and that letter was not an adequate drawl not only because it simply said that she was moving on but she actually stated that her interactions with hollywood prevail unit had been pleasant and she said that she was going to continue to claim reimbursement for her referrals that she had sent up to that point to hollywood pavillion in other words she's saying i'm going to continue receiving the illegal kickbacks that you have been sending me so when you when you tell  company that you're resigning the are leaving but you plan to continue to violate the law in order to get the money that you believe you're entitled to that is not an effective with drawl so mr danzig again misguidance why did although although a panel of this court concluded that the district court got it wrong in taking the issue away from the jury why did judge alter naga think that the withdrawal defense was so strong your honor judge even if she got the legal issue wrong was she completely wrong about the fact that it was and i mean this court agreed under the standard of review that applied but even i think if this court were to address it under the appropriate prejudice analysis here i think the evidence was still more than enough to show that mr dancing's testimony that if even if it were completely undermined would not affect the case and and i can explain why the judge elton augur relied upon the statements that miss foster made to the f b i agents in the spring of two thousand and nine and she disclosed that there were some fishy things going on at hollywood she said that they didn't provide all the services that were listed on their treatment schedule she said that they didn't wait thirty days between patient assessments that they recycle patients but what she never told the f b i was that hollywood  medicare and specifically that they were paying kickbacks including to her miss foster was the primary patient recruiter for hollywood brazillian she counted for one fifth of their impatient billings about seven times as many as the next highest patient recruiter and she actually affirmatively misled the f b i agents by saying that hollywood brazillian was a detox facility when in fact it was a inpatient psychiatric hospital she said that she had two doctoral degrees and a master's degree which we haven't established a trial that she did not and most importantly perhaps she gave the f b i agents a copy of her quote unquote marketing contract that was an attempt to cover up the fact that she was being paid for the illegal kickbacks at hollywood pavilion so with respect to the district court that you're not saying that was i mean that what no real document that was a real document it was a real document but it's specific purpose as the testimony at trial established was to cover up the fact that illegal kickbacks were being paid o initially didn't have that and then created it to cover up that fact you know i just wanted it wanted to focus you on the cases that you're that your brother has mentioned morton's market i mean the law is a little bit different in the eleventh circuit about of all and with respect to your descendant in the bergman case i the majority of the bergen court i did i think a limit mortons market to specific situations where a business was sold however that aside i think this is a different situation than morten's market first of all he didn't have a business to sell direct you while she she had a business but it with the angels outreach but that was totally unrelated to hollywood villian and so i believe that miss foster in her brief was pointed out that she sold that business but it's a different situation but as i pointed out additionally that faxed letter it actually indicated her intent to continue receiving illegal kickbacks which i think is very different from the mortons market case and finance she does she continue payments yes your honor she did she receive so she sent that letter in august and she receive so i'm trying to remember here the exact dates because i i believe that the receipt of that would not have but the question so so no value would not have put away in the five year statute of limitations but the government's theory is that because there was no after her letter the that was approximately five months i believe in march of two thousand and nine so in the following spring correct and the government recognized in the in the prior briefing in the prior case that if she withdrew even in spring of two thousand and nine that she still would have been out of the conspiracy over our position is that she never withdrew that thank you i need to correct a couple of issues on the record number one miss foster did not continue to receive payments after she resigned in september of two thousand and five government exhibit forty five are the checks which by the way were made out to angel's outreach her business judge martin the last checks were issued on august thirty first of two thousand and five and they were referenced in the indictment as the actions that were were her last overt acts on the three seventy one charge she never received payment and i would invite the court to look through special agent mitchell's testimony on that and special agent codes testimony on that and alan testimony all of whom testified after september of two thousand and five she was gone in addition if you turn to docket entry three forty four pages one fifty seven to sixty this is special agents testimony he acknowledges that after she resigned shortly after she resigned miss foster sold angels outrage she sold her business there was receiving payments from hollywood pavillion she literally had nothing to do with pavilion after september of two thousand and five and that's why mr danziger's testimony was so important those just ask you the same question about temporal scope that i  how long after she sends the letter to the she meet with the f b i agent is he correct about that the letter was sent in september of two thousand and five it's i thought it was august two thousand and five use me it's i have a fax sheet judge on  government exhibit one one eight it was sent september thirteenth of two thousand and five ok and then when does she meet with the f b i agents in the meeting that judge all to naga thought was so important to her withdrawal defen march of two thousand and nine which is five months after mr dan zigs attempted interview of her in november of two thousand and eight but after two thousand and five about three and a half years later that's correct and mr danc statement she was tiffany foster's witness the only one that she call to to advance or withdraw all defense he asked her for documents he asked her for help so he explained to her that he was trying to assist hollywood pavillion in meeting an investigation by the united states into medicare fraud and she refused to help him he testified that this was unhelpful to him this was communicated to the agent to the lawyer for the itself and for the individual who was at the apex of this conspiracy kalends or and she told her i want nothing to do with her freddy krueger nightmare on elm street now you have to put that in the context of five months later going to the f b i the f b i agent special agent durango testified he did ask her for documentation she gave it to him and that in a situation like this you're basically saying the evidence was insufficient aren't you i mean years you're saying that taken all the evidence in the light most favorable to the government there wasn't enough wasn't enough here to show to show withdraw and isn't that the precise issue that was before the earlier panel in this case whether there was evidence  how does a differ from their decision that there was sufficient evidence for the case to go to the jury and from from our view now looking at the case taking the case in the light most favorable to the government will judge walker because that's the wrong standard the court is not to take the off by arguing that it's a jury question and the jury obviously was affected by the prosecutor's improper conduct and the admission of these other other please but lately at least now the latter discussion has been the sufficiency of the evidence taken in the light most favorable to the government that they want reviews the sufficiency of the evidence let me let me correct something i said that the the sufficien evidence the weight of the evidence to the withdrawal defense is important and the court must review it but the standard is the novo the court unlike the prior case is not to view the evidence in a light most favorable to the government that is absolutely not the standard to review in this case the courts are conducted to novo review under a harmless error analysis and decide whether that whether the government's error is excused because  the evidence of guilt is exceptionally strong not in the light most favorable to the government so here you have all of these acts that she did beginning in two thousand and five followed in two thousand and eight done in two thousand and nine where she absolutely distanced herself from the conspiracy communicated to people involved in the conspiracy and there's not one piece of evidence that the government has pointed to other than incorrectly suggesting there were payments after she left way isn't the question whether there was evidence the evidence was sufficient for a reasonable jury to reach the conclusion that it did the on a reasonable doubt that's that's not the issue that's not the issue on appeal just i thought that but that seems to be what you're arguing now no judge what i'm what i'm arguing is  the evidence of her withdraw the sufficiency of that with all the fans which she had the burden in this case was strong that there was no evidence from the government to counter that proof your argument is as follows i think you tell me if i got it wrong you do not contest the sufficiency of the government's evidence to convict your client rect you as you have to because of the prior panel decision that the question of withdraw was a question for the jury correct but your argument on the evidence is that this is not a case where the government's evidence of guilt was overwhelming  substantial and on the other side of the scale your evidence on withdraw was strong if not legally determinative so that the prosecutor's misconduct tilted disk ale's and constituted harmful review is the weight of the government's evidence to meet and defeat or withdraw all defense which was substantial and that's where they had no evidence other than the improper cross examination where the prosecutor put the  against that of this witness thank you we're going to nominate you for the diplomatic cor