please the court my name is andrew goldsmith and i represent florida i'll begin today with the speedy trial act the text of the act the supreme court's decisions that night and this court's decisions and bryant and sanders all require the district court to explain on the record its reasons for finding that the ends of justice served by the granting of an age seven a continuance outweigh the best interests of the public and the defendant in a speedy trial and given that the you are in the beginning of her decisions she recited that as the standard and then in describing the findings factual findings the she is required to make she described her previous findings she did not make any additional fact fin case for example which the government relies on the district court referred generally to the need to get cases to trial as quickly as possible i think that's a fair reference to the interest in the public record here said everybody's most efficiently use the time of the jury arthurs public interest and your honor i think that the district court referred to the interests of justice which is part of the test that's required by the statute but she did not w the interests of justice to the benefits to the interests of justice against the interests of the public and the interests of the defendant so if she had done what you think she should have a hypothetical what would she ha your honor and therefore orders that we challenge now i know but i want to know the sense that it's missing here and here you two sentences that hypothetically your honor and i don't know that they would have been supported in this case but the sentences would have been along the lines of i consider the interests of the public in a speedy trial in this case and given the facts and circumstances of this case the interest of the public outweigh  the last point i would make on this your honor is that this court in the lopez year gutierrez case which the government also cited in that case the defendant argued that the district court stated reasons on the record were not its real reasons for granting continuance of the court this court rejected that argument and it said we take the district court that it's worth we're asking for the same thing here taking the district court at its word it did not do the valance and test as required moving to the speech trial sixth amendment argument i want to focus for today on the fourth parker factor which spread prejudice his book and he was incarcerated for twenty months before her trial severely limiting her ability to confer with counsel and this case a very document heavy case there were thousands of documents involved a relatively long time period for a criminal case the government meanwhile benefited greatly from the way the government talks in its brief page twenty two about how it waited until the day it arrested my defendant my client to issue subpoenas to banks and then it took more than six months not surprisingly to process those subpoenas there was no reason to wait that long unlike other people and entities banks are prohibited by statute from disclosing grand jury subpoenas that they received issuing those subpoenas earlier would not have endangered this investigation that should have been done earlier similarly the government arrested my client the day after it searched mobile's offices after collecting thousands of documents there's no reason it couldn't have begun the processing of those documents reviewed those documents before resting my client that would have preserved her ability to have a speedy trial and of course the government eventually months after it told that its record it would do so superseded the indictment adding a number of defendants most of whom ended up being witnesses against my client and finally during the trial after the twenty one the way the government created and disclosed for the first time exhibit four thirty nine which my colleague mr kirsch will address which was of great prejudice to both defendants misspoken to move for bail repeatedly which courts have recognized  preserves the same interests or some of the same interest as a speedy trial that this report here said that it was concerned about the time the discovery might take given the nature of the case she said that that circumstance call for quote unrelenting efforts by the government to process discovery and get ready for trial as promptly as possible close quote that was in response to my client's first motion for bail the government did not heed this report's warning and now language comes from docket  entry number twenty four in district court moving on to the money laundering subset of counts concealment counts all of those transactions that issue in those accounts moving money from a global account where the defendants were the only signatories either directly or with respect to one of the counts indirectly to another account where the defendants were the only signatories those transactions could not have been intended to conceal anything because the accounts were openly controlled so the  i informant testified otherwise right he said when you have sham companies using money orders and rapid and repeated transfers that that creates an inference that you're trying to hide your honor i don't think that the fact of the transactions alone is sufficient this court i understand that's what the agent said this court said in a lot of us the three together it sham companies money orders rapid repeated transfers you know just have one why you on these other companies through which some of the money travels the extent those companies did not do other business that helps the defense of the government is the idea that classic money laundering cases this court has recognized in that of a global accounts fraud against global against the defendants they testified about that fact and so that gives the fine is a perfectly good reason to want to move money out of accounts to not rely on ordinary checks to take cashier in particular the government is obliged to overcome innocent explanations for the conduct because the fine line between criminal and non criminal conduct here secondly the government the court has also talked more than once about the fact that where the evidence is equivocal or the evidence is there where there's an equally plausible innocent explanation and guilty explanation that that's not sufficient because in those circumstances the only way to find guilt is to speculate to choose choose one versus the other when the trying to make clear that this wasn't medicaid money they were trying to disconnect the money from medicaid so even though all the accounts were in their names it was all transparent their purpose was to warn her of the money and why real say corporation the other was you know trade or something but the whole purpose of this was to cleanse it of any connection to make it me that that's the question we have to look at right there their intent the intent was the intent to concede to tip to the wrong to the money so there was no connection to medicaid to make it look like the money came from other sources that not that they wanted to conceal their connection to the money i don't i don't that's all that i don't think the doc can be inferred here your honor as the government says global do virtually no business other than discussed in our brief right yes in that case the defendants moved money into a corporate account into personal accounts and into cash and this court said that those circumstances were not enough and reverse the convictions because  with records you could easily imagine a money laundering case where there was some actual direct evidence of people talking about money laundering there were numerous cooperating witnesses in this case you testified about the defendants not of them said anything about   so you're right in that case there were fake id he's just like here but the think that he's they are have a connection to the illegal real city here these two companies if you just look at these two companies you know their articles of incorporation or whatever you would think the money here came from either real estate or some sort of international treaty had nothing to do with medicaid so that's the difference between this case that unpronounceable i think not of nose none of those companies as the government argued in fact didn't do any other business just based on the name of the company was also apparent that they were the defendants companies i think the one other case that i want to bring to the court's attention on this is the starter case which we wrote a twenty a j letter to the court about where i think the evidence was much stronger of an intent to conceal and the court reversed the convictions this was a case where the defendant was affectively a straw purchaser for a car he bought a car that was to be used by his friend who was a drug dealer the defendant used it in his own body in his own name even though it was to be used by his friend he paid for the car with drug money that his friend put into his account for that purpose and this court said that that wasn't sufficient the reason it wasn't sufficient was that the defendant and the drug dealer went to the dealership to gather to set up the purchase of this car similarly here all of these accounts are tied directly and obviously to the defendant's evidence also show it wasn't simply putting the money into  paid the company eighty million dollars over several years that had up to eight hundred or more than eight hundred clients that had certain points it was a large company people could  have perfectly reasonably wanted to spread their money among multiple banks multiple accounts just as a matter of protecting protecting the money not that if you think that through really that that necessarily makes sense but that's a perfectly rational thing i think for an ordinary person which is really what we're dealing with here ordinary person to to try to do to protect themselves so i know that's the way you started your belief and how much evidence for  here well your honor i think of the evidence was clear in the record and came up more than once that there were more than eight hundred clients of global by the end of its it was not general motors certainly no no but it's one thing that we're jury heard about this other welcome morning your honour's may please the court katherine kelly on behalf of the united states good morning i just want to clarify one thing with counsel i'm certainly not sorry tell to you want to save your time but your ten  stained by victim as a result of the offense shall be on the attorney for the government this court in fair said that that sentence means what it says the government here tries to escape that sentence by saying that because of the defendant's fault that it was impossible to figure out how much of the billing was legitimate versus fraudulent the defendants should read a bit but if there's a sentence unfair that it seems to open the door doesn't it to you for a court to shift the burden and to place  obligation on the perpetrator the alleged perpetrator if that perpetrators in a better position to know what was legitimate what was not how should we think about that language in your act i'm with you on that the language of statute i'm not talking about that sentence i share yes or i think that the burden shifting that's talked about here and in other sense in context typically is a burden of production not a burden of proof or burden of persuasion that remains with the government and here i would say that the penance met the burden of production because the evidence was full of the record was full of evidence that there was legitimate billing all of the government's witnesses cooperating witnesses provide they brought a certain number of clients who testified about services they received her did not receive the government could have attempted a quantification of what it could actually prove they didn't do that it brought a handful of witnesses again keeping in mind that there were seven hundred some aides eight hundred some clients it brought ten employees five decades and they testified to what they testified to and if the government wants to be content with that then it can be but it that the court might affirm the convictions the conspiracy count for example course is very broad and could be supported by a relatively small conspiracy or a relatively large conspiracy but then when we get to  restitution when we get to compensating the government as the victim in this case the government the d c medicaid is the victim the government the u s attorney's office has to prove the extent to which it actually was a victim that's what the statute says that's a fair says the government hasn't done that the government has asserted that the fraud was very widespread and but concedes that it is it was not complete that there was legitimate business going out legitimate services being provided the court this report found that that there were legitimate services being provided and the fact but it couldn't identify the scope of those services that's a page the eight hundred thirty of the joint appendix those two findings say that the government has not proven and cannot prove the scope of any overbilling fraud here we can't do it so the district court also found it not that the fraud was so pervasive that the alterations were made not only to patient records billing records employee records so that the implication of that finding although i bill isaac one circuit has rejected it was that it was an impossible task and therefore at least he that judge tables question a burden on the defendants to proffer come forward not on the government to indicate what it tried to do to calculate what legitimate services were provided to to my knowledge of the government made no attempt hardly disputed that the government didn't say that all of that was fraud it said that it couldn't figure out what was fraud and what wasn't and i think and that respect i would point to the court to the ninth circuit's decision and right guard that's what i referred to in that case th district court said that he did defend his business was permeated with fraud and the ninth circuit accepted that characterization and said it wasn't enough either for a conviction or for sentencing that wasn't enough the government has to prove in the context of restitution where it is saying that the d c medicaid is a victim it has to prove the extent to which it is a victim in forfeiture where the government wants to to claw back ill gotten gains by the defendants and the government has to prove the extent of those ill gotten gains it has to prove that the think they were actually gained by the defendant and if it doesn't prove that then it can take that money and it applies as well  in los calculation though doesn't it i mean that is i understand the government makes out the prime fish case by submitting the receipts so we start here we have eighty million defendants are entitled to a reduction of any loss calculation for the fair market value of the services rendered that's the pieces of the language that would apply here and i think they do apply here there is plenty of evidence that there were  services rendered and the governments are entitled first to the government has to approve an amount of loss which it hasn't done but even if it did do that that amount would have to be reduced by the services rendered in the government and its brief characterizes that note as having to do with legitimate services rendered the no doesn't say that the word legitimate is not there for perfectly good reason this is a criminal offense in statute it's assumes that there's some amount of illegitimacy that's why we're here but the point is if actual services are provided the d c six if we were to remain on that what would it look like in the district court well your honor i think that this report as i mentioned has already found that it is impossible to determine the amount of law so i would not can see that to determine the value of services rendered and i think i would go back to what we talked about earlier about the burden of production and persuasion that to the defendant here can point to the extensive evidence in the record that there were services rendered and then i think it remains that the burden the final burden remains with the government to prove whatever number of wants to attach what i'm getting he would try to struggle with this a little bit in terms of you know terms of their value to the government trying to estimate the legitimate services so the government is left with the obligation to  interview anybody they can identify but at a minimum since they proffered these defendants as witnesses of their own they had to  acknowledge that to the stand they proffered evidence that there were legitimate services at least that amount has to be credited whatever it is you know hundred dollars two hundred dollars two thousand dollars be frank that the number that we're talking about here is the number that was received by global it was not the amount was billed by global which is somewhat higher but i think still the government needs to show that bills were the bills that led to those payments were fraudulent and that's what it hasn't done either with respect to the overbilling or with respect i'd add to the exclusion fraud that's alleged against my client are two points i want to make on that first there was never any allegation that mr because he knew about the fraud had anything to do with the exclusion fraud so that can't be a basis for any sentencing of mr book and as to music and he my client i point to a number of cases that we cited in the briefs from the third fourth fifth and seventh circuits that all care that fraud in obtaining a contract does not taint all the money that is later paid as a result of the contract and so similarly here well that's not necessarily well yeah fair enough your honor and i think in these these facts of match quite well the facts in those cases those raw cases where defendants misrepresented their qualifications for whatever contract it was there were minority owned business programs etc that none of those were health care fraud cases right that's correct your honor but to the center the government wants to take this idea that global's application for a provider number taints everything that went after i think those those cases are all good analogies those are criminal cases where people improperly obtained contracts and that's one thing but then what they got paid through those contracts for actual work that was actually done is something else and t amount of any loss and any amount beyond any amount of loss is punitive it's grossly disproportional for effectively the same reason that in order to figure out if it's proportional you'd have to look at the scope of the offense the government hasn't proven  morning your honor may please the court katherine kelly young for the united states if you're on i would like to start with the speedy trial act issue that there's no need for the district court here to add anything to the findings that she made in regard to why the time was properly excluded from the speedy trial clock as this court stated in rice the findings under thirty one sixty one eighty seven do not call for any magic words when the court legal standard and then tonight the motion therefore applies to all the periods at issue in a time finding at the dismissal motion stage in making the rulings at the time the court also included her reasons on the record there is no requirements that those there's no magic words requirement that i would see is simply reciting the standard using adequate right of the cases tell us we need to see that the district court judge grappled with the fact that's correct that was a so were you see her grappling it was see her grappling with that when she's doing the hearings where the parties are explaining how much discovery is being turned over miss documents they've received and how they're processing those reviewing them scanning them having them put on searchable databases for the defense and so forth and in in this case that that sort of findings and that sort of discussion shows that the court was was weighing all the necessary interests in particular in the race in the  by the district court sufficient even though we neither of those cases did the district court mention the public's interests if it clee in those cases the court had consider the complexity of the case is one of the considerations in both the interests of the defendant and so forth and that's that's exactly what happened here to look to see your case talked about the ample discovery that was going on and so forth so those are the same considerations that the district court was weighing in this case and explained on the record and in that regards and i believe it was the race case also that said in addition to not the magic words that sometimes when you actually look at what is the court examining  it that's more important then seeing this it just wrote recitation of of the standard under thirty one each seven now this makes the argument that trial right violated for various reasons and i know the government disputes that but hypothetically if her speedy trial right and the government's obligation to bring her to trial within seventy days plus any proper exclusion she argue expired before the superseding indictment was filed and the argument sort of is that well you thought i was receiving indictment you and dependence on the clock starts i didn't see any case though that really deals with this factual situation you such case that is where the original indicted defendants time expires but they're held over because the government is  we did not find in doing our research for the case any case that squarely addressed this point either that the closest that i was able to find was the chen shane lou case from the ninth circuit where there was a and obviously very old indictment  in california that seemed to cover the same conspiracy that was later indicted nevada and given the very long time between those two indictments it would appear that the original speedy trial clock would dismissal either with or without prejudice that's what i'm getting so it can be a dismissal with our president correct and that's up to the district court to decide and what was unusual about this case is about periods only in regard to the time on the original indictment which put the district court in a very difficult position because it there were there was at no time was the district court faced with the old indictment in making a decision in a timely manner on whether or not to dismiss with or without prejudice so it was it was a very unusual situation in that regard and as the court the court in ruling on that motion to dismiss first of all just clearly explain what her rationale was explain what her the legal standards were and then denied the motion to dismiss when the issue really is here whether or not sufficient findings were made under age seven and based on that ruling plus all the rulings that the court made in excluding the time as they were coming up in the first place we believe that sufficient language was place in the record and therefore there was no speedy trial violation at all i'll say my question and thank you i'm in regard to the sixty minutes speedy trial issue just briefly on the fourth prong of the defense in c jail during that time and she was present for numerous status hearings and so forth and so that's my impression from the record your honor in regard to the money laundering convictions as w pointed out in our brief it's unnecessary to hide the relationship between mr mrs the kind in the bank accounts and the corporations what makes this case different is their disguise and they're attempting to disguise the source of the funds that this money came from d medicaid and it's a series of things that make this a valid case to too show show that they did in fact have an intent to hide the source  there each of the transactions that was charged they're running d c medicaid money in the course of a one to four days at the outset through the local account that takes in the money through a second global account in one instance through a nother flow diamond account and then during that one to four days that money is then going either to c f c's accounts or try continentals accounts both of which were sham companies as is the record showed at trial they did transferred through sham corporations was indicative of money wandering in supported that that finding in addition to that the money then went into numerous accounts mainly held in personal and they used in a number of instances cashiers checks to transfer money from accounts that they own into other counts that they own which is agents and testified was very unusual given that they could have  transactions and testified that she interviewed numerous witnesses about some potential of fraud on goebbels and counts and no one was ever able to tell or anything more about it no one ever had any additional information case particularly in regard to federal health care fraud cases such as this the fraudulent bill submitted by herman in the health care for our program constitutes prime affair she have an answer the amount of the intended loss and it's sufficient to establish the amount of the intended loss if not provided so that's what we're dealing with in this case the court here frowned to to find reasons for saying eight point six million dollars was  the proper amount of wast and then ultimately the proper amount of restitution first of all the court found that since global unlawfully became a medicaid provider in the first place all the money received through the medicaid provided agreement was there for project once and then on top of that the district would recognize there was some work done right the court recognized that this was so so that it's got to be less point is that legitimate versus some work was done are two different things the court found that there was that's the question some services rendered here the question is whether they would be considered legitimate is another question given the knowledge there had been that one of the reasons she gave for giving her departure was that she says recall it was all right about that that there was legitimate business she acknowledged that the court said that there were some services provided but what the court also found in regard to the loss amount itself was that it was impossible to determine what if any services were illegitimate those records were basically with her but that's different from you saying she never found there were some services you're totally right she said kid the government has to i can't distinguish between but there were some that's what you know i think my point is your honor i'm not i'm not saying that the court did not acknowledge that some patients did get care from aids and so forth that is that is correct based having received what effort was made by the government to quantify those services it was frankly impossible for the government to quantify those services why because of that employees who testified as to what they did you had clients taken into account at least in the rest to show that the problem is that there is no way to quantify that and if the court would allow me to explain what happened here is the government received all this documentation and search warrants and so forth and the fraud was so rife that as the district court explained that it the scope of the fraud spilled over into the documentation potentially for every global patient and employee here's what i'm getting at i understand that can be an argument at least one has rejected and the point is it's easier for the government if it has records and it can just add up the numbers it doesn't have records here but it has human beings with and they testified and the doctors could testify as to what their prescriptions were other nurses testified as to what programs they approve of the patients could say i received my pills every other day it's it's laborious all right but that may be the nature of the beast is what i'm trying to get you to do address  and the problem that makes this case different in your honor is a situation where the aides were going to some patients and saying here sign this time sheet i'll pay you a couple of hundred dollars we can pretend i was here so  f count that in other words what i'm getting at right but isn't sometimes the government burden is difficult to meet that is different from it's impossible to me it's not as though the records had been destroyed in fire that all the clients were dead all the doctors issued for scripture and had no records i'm just trying to get an understanding of what we're dealing with in the government than maybe very very very very very very difficult but that doesn't necessarily mean it's impossible one hundred percent doesn't it doesn't mean it's necessarily impossible that the last amount of course has to be a reasonable estimate based on the available information the problem here is the available information is when you open the patient files there's forge plans of care i'm with you on that with heidi trying to get so beyond that you have the doctors who wrote the prescription there are no doctors writing prescriptions all we care according to the program there were prescriptions there were programs the programs were approved and who is it who did those audit group reports about deficiencies except there was h r l a that's the licensing board from the district of columbia they went in they found vast amounts of of problems in the reasons you just for town it is impossible for us to figure out the amount of the gentleman services legitimate in quotes here then it's a burden not a burden of proof but a burden shifts at least to production for the defendants to say in fact we offered the following services to these patients and there was  legitimate services to some of their clients at the time of sentencing all they said was something like like that there are some legitimate services there was never any attempt to quantify and of course even when the burden of production shifts as opiates court said in the third circuit the while the case in the first circuit said it's up to the defense when that production burden shifts for the defense to come up with some evidence and they did not do that here they just said we can't give you a lo numbers there's no loss not a number that applies at all in this case and so they didn't need even a pen where the statute doesn't authorize the shifting of any burden away from the government to the defendant it's the government's burden here to show actual provable loss and if the government can't carry that burden it loses we're as the authority in the statute to shift that burden somehow to the defendant i know i know a couple of courts of that i'm asking you where the authority that we're relying on is the application no three have eight for fraud in federal health care insurance cases where the government is putting statute says the court order restitution to each victim in the full amount of each victim's losses as determined by the court and that's three sixty six three six hard af you're trying to understand what that the dollar amount received here by global was again all fraudulent because it was it was provided by d c medicaid under a fraudulent if we have a fire that legal analysis moving beyond that legal analysis moving beyond that what we have is that a case where the documentation at global's offices was so rife with fraud that it's impossible to figure out how you can reduce any amount of you the restitution or loss by some sort of on quote legitimate services provided the fair case said actually in certain cases such as when the defendant is in a much better position than the government to ascertain particular facts that issue partial shifting of the burden to the defense is appropriate i know and i read that the burden of production not trying to amend the statute to say now that this is the burden of proof well sure sure but even here if you look at it now i understand it is a burden of production as well and we're not saying that the government doesn't have the burden of proof we have it through at a preponderance of the evidence standard at sentencing however and given the full amount of the billings that d medicaid paid to global it is a valid measure of that victim's losses in this case particularly i would say the court to the last case from the tenth circuit where there was a defendant made false statements on an application for agricultural subsidies in the court in that situation and ordered restitution in the full amount of subsidies the defendant received because he was an eligible to receive any subsidies due to the  evidence and given the right fraud that was going on a global it's impossible for anybody to say what allegedly legitimate services was provided and how that loss did not  what the government's understanding of it burden of proof is and i'm at sentencing right and the government let's assume has already proven beyond a reasonable doubt that the defendants are guilty of health care fraud so at sentencing the government can show a loss amount is eighty million dollars  as to restitution is it able to rely on that as well given the conviction of health care fraud i believe we are  are allowed to rely on that that can be the law that's what we're trying to stretch a lot because if that's the end of it then there wouldn't be all this language  i'm trying to figure out the calculation except for a pretty impossible and i just wonder sort of what what the principle estab case would say in other words any time the district court departs downward then the government is relieved of any burden questions and we're pressing you know i don't want to give at all but that's what i'm concerned about in terms of where we end up here and is it just that sense and you know the district court did what was required under the sentencing guidelines and then decided to depart and that's really all we need to look at i mean there's a there's all the court really couldn't do it in this case because as the court recognized it was impossible really for anybody to figure out what sort of value might be applied to those those not very common occasions based on the trial evidence where in you you understand once in actually provided services  somebody and for that reason the court took three into consideration and said i'm going to downward depart but left the last amount of what it was because that's under three after eight what the the standards applied to the fact district way failed to direct or traceable there's no evidence with respect to the thousands of other transactions so so i mean we can't really say that all eighty million was all eighty million was involved in or traceable to money we can't say that on this record so you say your honor's question is since there was a finite number can't we can't say that about the east you know what i believe we can your honor because you know because again all the money that global received the eighty million point six was from their fraudulent enough to satisfy ninety eight twenty one i would say your honor that given that this these were the same thirty nine million was imposed for  ted it's not a magical words test and i just want to make clear we agree with that we're not asking for a magic words test i think rice and locus here a good theory as help us in both of those respects some other approximate not address the public interest i don't think that's right in rice it did it in the sort of approximate way that i mentioned and look as good as here to tear as i did it explicitly explicitly referred to the public interest through the talk of the government about the superseding indictment i think getting indictment resets unexpired clock and the reason for that is once the clock expires as the government said the indictment is to be dismissed and the district court decide whether that dismissal is with or without prejudice and their standards for doing that that are set out in the statute the government prevents the district court for making that assessment if it superseding indictment resets the clock that this record had the statute been applied absent a superseding indictment could have been decided to dismiss with prejudice the government of superseding superseding indictment resets the clock that takes that power away from this record though it is given to the court by the statute with respect to whether the prejudice on the constitutional issue most of the points that i discussed here previously were discussed in the briefs as i said the government itself is the one that talked about the time it took to handle what it received from its subpoena its bank subpoenas issued on the date of the arrest that's in page to page twenty two of its brief we can about the fact that the defendant was incarcerated all of the cases the talk about the speedy trial talk about the inherent difficulty that that places on the defendant to confer with counsel in any case and of course we talked a great deal in our brief about government exhibit four thirty nine and the prejudice that the defendant suffered by its late creation and leave disclosure the with respect to the question of whether there was this fraud other fraud within the global accounts the defendants did raise that point repeatedly at the trial so much so that the government responded to it in its questioning of the witnesses  and in its closing argument so that point that there was fraud in the in the underlying accounts was definitely raised the trial there was talk about bounced checks there was talk about a fraudulent check and there was talk more generally about about fraud the government said a couple of times that the district court is entitle to estimate loss the last number for sentencing guidelines can be an estimate of the loss the number we're talking about here eighty million dollars is very explicitly not an estimate of the l this report said it could not figure out the amount of any actual loss and it just took the full number of the amount that was paid by d c medicaid that's not an estimate in any way with respect to restitution the government suggested that this is a plain error on appeal we don't agree with that the government in in its restitution briefing said with no further explanation the restitution number should be eighty million dollars the defendants responded in kind they objected in exactly the same way and in any event we think it is plainer given the the text of the statute and this court's decision unfair the government mentioned the tenth circuit decision millo and tell o t in response to the cases that i talked about earlier where the acquisition of a contract by fraudulent means doesn't taint the money later paid through that contract millo is very different from a low as a case where a defendant applied repeatedly for agricultural subsidies that wasn't applying in order to get a contract to provide services later and then get paid for those services they were discrete applications direct applications for specific subsidies which were then paid that's a fraud carried out in getting those specific payments is very different from what we have here and from from the cases cited in our br adopted by each offended but i do want to start out with the rule sixteen issue we were three weeks into a complex trial and this was a trial the involved literally hundreds of thousands of documents we will one witness away from the government's last witness when all of a sudden this incredibly prejudicial report exhibit four thirty nine was dropped on us so we had to make very quick decisions as to how we were going to deal with  and what we were going to do do with this report the trial court acknowledged that there was a problem with the timing of the report the trial court also knowledge that something had to be done to cure the leg and judge how specifically said this is not great timing one just a question of great timing there's a question of the prejudiced the severe prejudice that might be the kind they suffered as a result of action let me ask you about that now the district court said oh you just mentioned argue as you're arguing today that we need a lot more time we need to do this investigation this hits us in the last moment all that sort of what we did make that objection and i specifically  patient for a twenty four hour recess to further investigate this matter donald schirra who was the witness that this exhibit was introduced who testified about this exhibit he knew nothing about the underlying the next twenty four hours right yes it is that we are talking about yes i know i was in the impression that the fed defense you tried this case right yes i was under the impression that you said that wasn't necessary you actually did meet with th that version of it with all the names right yes that's correct but but so you know i'm sorry but the it in the report was useless donnel sure it was was was useless in terms of like you totally neutralize and then in your in your in your and then you did the closing before the jury right yes he did really good job there too all right  and that i believe that continuance was not appropriate in the context of this particular trial and that what we needed to do which would take a very lengthy period time was to get out and interview these witnesses and i would also at the court that prior to trial i went out personally with my best get a knocking on doors trying to locate beneficiaries so this is not something that was some fantasy this is part of what we did but we had no idea that this issue was go arise during the course of the trial that ended this issue being what i'm sorry what do you mean when you say this issue quote unquote the issue of whether or not the court provided an appropriate  but the issue was had your client provided services right that he was ceding this medicaid money for no actually was on the books was that well the issue was whether or not of these five hundred  sixty seven patients maybe a certain percentage of them dropped out of medicaid for reasons other that global be shut down and mr sure analogy that there's a litany of reasons why they could have dropped out dropped out of the medicaid program but all of that is subsumed we were able to elicit that across before able to put on an affirmative evidence of individuals who had dropped out of medicaid for legitimate purposes that's where the prejudice rose we go back to what happened twenty and your your clients were sitting right there right in this you could show them the list and said look you know any of these you recognize any of these names i mean were any of these legitimate can you tell me now where these are legitimate people and then i mean  honor is that would be burden shifting for us then to have to take this information and go out and introduce these witnesses sometime like francis i interviewed a number of witnesses pretrial who i got valuable information from but i didn't call them as witnesses  g information i was able to tame from them for cross examination so sitting with michael because they going through this list would have been a useless endeavor i suppose he did know who they were i think he can identify a single beneficiary in the program that role and again i go back to marshall because in marshall involved to jail visitations that the government produced or trial and in marshall the court court gave a for there was a four day recess this was to weekend days of the holiday and in march i said ok well will that opportunity to clean this up this violation was for more egregious than what we have in  value of the report since the witness knew nothing so then where's the prejudice the prejudice is still that we could not bring on or at least interview and then make a determination as to whether or not to introduce an actual people to the jury who would get on the stand hypothetically because we never have to investigate to get on the witness stand and say no i dropped out of medicaid for a legitimate reason and had we had the opportunity to do that we would have done that because it would have rebuttal the government's case in an even stronger manner and the other more exercise and sort of subjective but the government had this long list of witnesses they brought on witness after witness after witness we certainly would have preferred in our case in michael the commies case to put on witnesses to the contrary so we clearly that's where the prejudice lies and that the inability to investigate and the ability to confront income in a complete fashion the government's evidence so and you know the district court has considerable discretion in the remedy assuming a rule sixteen violation counsel may have said something to the judge but i have not on the record it's not well it would have been an ex parte day and it's not something it's not it's not something that i would have been involved with because i tried to make the record as clear as could be that i'm continuance because the effectiveness of the cross examination is going to be diminished over time we want to keep going and keep taking it to the jury and that's why a lengthy continuance which would have been out of necessity was not two thousand and nine and that's a critical piece of evidence because that's what gets the ball rolling that's how this started with that medicaid provider agreement and it was farcical kind of decided it was james court that there's a balancing act that should be done here because and we outlined this in the break in the brief in great detail we must use the evidence they were going to the government right even with that standard there was so many in consistencies with the government witness they was so biased every one of them had a motive to come and testify everyone almost every one of them had admitted to fraud almost everyone had made it to committing crimes almost everyone admitted to being so all these witnesses were really all over the place and so i would submit to the court that they do not deserve the benefit of the doubt in this case and that the court should look at the totality of the circumstances and  his personal file i mean there's a lot of evidence you're right he was involved at the beginning but there's a lot of evidence to support the fraud and that testimony came from so someone that i would submit to the court was so totally were cross examined and they were challenged and they were just tremendous and consistencies that are all outlined in the brief and it gets it's it's a judgment call as obviously as to whether or not that type of testimony those type of testimonies government thank you again your honor katherine kelly on behalf of the united states in regards to government exhibit four thirty nine it's important to remember that the district court here both now trial and then again in this post trial ruling found that there had been no violation of sixteen in the first place so we don't even get to the point of whether or not the same question here was appropriate because the basis for the radical rule and the basis for that ruling was the fact that the government did not have government exhibit four thirty nine or the data underlying it in its possession yeah but it told mr scherer to get it together and asked mr scherer in the months before trial to see if it could he could figure out a way to try to quantify that of the government prevent major reports coming in the end of the trial well first of all we would not say that this is a major report it was that while there is the council's argument if you didn't take it was a major maybe you wouldn't  putting it in the point is your honor in rule sixteen a contemplates that investigation can still continue during trial has definite martial case and that's that's exactly what was going on here i was the defense counsel of word and the fact government was trying to do and isn't as important as the government since you had all these witnesses who have their own motivations to testify and say mr sheer was not a member of the prosecution team his please generate this is so exhibit was mr sure who came up to come back and says i thought of a way of doing it exactly and the government says well that's interesting exactly and he came back and said i thought of a way to do it and handed government exhibit the document that became governor in exhibit four thirty nine to the government that's very damning saying that he thought the government was just making sort of what an aside see if you can quantify this they ask them to see if the quantify yes and that's not asking him to prepare a report if you can quantify i just want to be clear magic words here no it's not magic or john but he was asked to see if you could quantify what he came up with in doing so was what turned out to be government exhibit four thirty nine and as mr scherer explained during his testimony it took a while to figure out how he was going to try and do searches in the d c government agencies and was the district court concerned about the perhaps bad faith or no one to share evidence that occurred had to address that issue though the court did address the issue and the court found that there was no bad faith and that there had been any allegations by the defense of bad faith that's in its objections were made on the record to the district court indicating that interviewing this to share would be useless and that a mistrial was required not the way i had read the record on the point generally was just records and i'll give you twenty four hours and nobody asked for more time no one asked for more time which seems to be what is now being said his his rule thirty three post trial filings the government in fact did offer to provide all the backup data to the defense prior to mr schippers testimony so there isn't any  feds counsel twenty four hours but sure testified that one of my question is going to be how do you what your argument in view of this ok sure testified during this month and a half period these patients on this list received thirty million dollars with the medicaid services and that from march until then afterwards they've gotten the ok and then in the closing the government says the government says this is strong circumstantial evidence strong circumstantial evidence right that that that these people on the  have i'm asking you about the effect of the testimony before the jury and the government see moves through of course the effect on the testimony given the cross examination of mr scherer it put it put the defense in the exact same position as they were now trying to come clean they could have been in had they investigated they during closing argument well i think the regulation what do you know this white guy should because we don't know but what we didn't see in trial was the defense counsel on cross examination making the exact sort of points they're trying to say in their brief could have what would i be say had you said had they investigated how do you know what they would have come up with had they been allowed to invest could have been very different and this is that the point it's not the point your honor because they never sought any additional time to investigate and it's not a matter of what hypothetically if we think about it now could possibly which is not the record have ever come out of any sort of investigation the points are that darn sure was a question during cross examination and the points defense brought out was that there were mr s see that he couldn't say how many of the five hundred sixty seven beneficiaries his office and even interview he conceded that a small number of the beneficiaries on that show died he didn't know why any of the beneficiaries listed on that chart no longer received services after global closed he agreed that there were other reasons he sees me arguing that i was flying in the face of the closing argument that was made to trial but this was really compelling evidence now you're saying well it really wasn't so much because it was  withering cross examination by an attorney who didn't have an opportunity to interview the people you know the point is that to show a rule sixteen violation that affects the convictions  prejudice to their substantial right and what is not been shown here is any prejudice there are substantial rights given that they never asked to do can further investigation that they got strong cross examination opportunities that are laid out in particular page seventy five of our brief and then the you know despite the government saying that this is compelling circumstantial i mean referencing that you said they had strong cross examination opportunities but they had no chance to interview the people who were the basis for the report how can you ignore laws that would be good i don't i doubt that you are i would would think that that sort of crap if that was the cards that we were dealt with we would think that we have a strong cross examination opportunity we had a chance to cross examine but it's not a strong one until you can go ahead and talk to the people who are the basis of the the the four thirty nine exhibit right  would given all the evidence that i've seen in this case i was not because it's a matter of but again with this is a matter of them trying to show prejudice to their substantial rights and it that may be one of those questions that one counsel or do something one way or another counsel or do something another way what mr conyers attorney has said here today is that they chose to go ahead and not take that route they didn't want this information to become stale in the jury's mind they didn't want to wait the continuance they wanted to get this to the jury as quickly as possible and my point is that in closing the defense made good use of the fact that mr schippers report he has no argument the extremely thin evidence is  they had seen was that was the quote from florence because his attorney right ok are you finished on your response i am if the court doesn't offer that part i have a question certainly mr scherer came up with this list of four hundred thirty had payments had been made for those beneficiaries to global during that time and then after global closed in the time period following that i believe it was for the rest of two thousand and fourteen no other agency builds d c medicaid for services related to those beneficiaries so some of the defense counsel cross it was wrong subject to judge griffith observations in the sense that mr scherer was on able to say if any of these people had been interviewed that that's correct and that question about the interviews was that mr sure was testifying that global and several other health care agencies were closed the same day and they were left with approximately thirty two hundred medicaid beneficiaries that weren't going to be receiving services so his agency in d c agency was trying to contact as many benefits police possible to see if they wanted services and needed help getting services from another agency so i'm back to restitution there was a list of clients who could have been  to figure out whether they received any services or not there were there were clients that were listed that could be interviewed but the question is then whether or not those services that they recede from d c medicaid thirty million dollars the beneficiaries did not receive mine and i don't mean globalization years i mean the defendant's thirty million dollars correct for some period of time so my point is it's not impossible to figure out no it is your honor because yours the difference is joan says i was there for two years and i got my pills every other day you know i mean mr jones may have been had an aide in her house that had fraudulent certifications the she had the edge i don't much mind the service modifications i know that's only work that's part of the medicaid agreement that you make is that you're following the rules and regulations of medicaid like having providers i don't go to sleep and you want to argue a perfect system i'm just kind are you restitution i'm not even trying to argue but i'm trying to understand what's available to the government were we to send this back well  you would disagree with what i would disagree that if the court is unhappy with the restitution amount that they could not be remanded at this point the relying on the fair case to say that that's a question of our happiness or not just clear about that but all i'm trying to understand his with the witnesses who testified as government witnesses plus the records that d c medicaid there is a possibility of tracing situation that it is impossible for the government to meet its purred that's what i'm trying to understand i understand your honor and i understand your point but the case that i would ask the court to look at is the jones case and believe it was the fifth circuit and they were talking about if you send somebody who was not qualified i think that case was physical rehab aids if you have somebody who is not qualified to provide that service then medicaid hasn't received something of value from that going to the house and it's the same thing here you have many many instances where the qualifications of the aides were doctored in the employee files of numerous situations where plans of care under which the global company was supposed to provide services because they had been signed off on by a doctor saying this person needs services and here are the services that medicaid should cover for this person all of those had false states and signatures were doctors maybe signed a plan once but then they were supposed to renew them every thirty days and so and would just stick a new date on their files and forged dr signatures and put cut and paste jobs together so those are the reasons why there's so much fraud inherent in global files that even if you could interview somebody who said yes this lovely lady came to my house and gave me my medication gave me my lunch every day it is still not clear that medicaid should have ever paid for those services if they were done by on qualified people under falsified plans of care and that that's the point i'm making and i anything for him lest the court has any further questions we would rely on the vast evidence that we've placed on the record in our brief as to sufficiency and for those same reasons there is no disparity of evidence that would support sevens in this case mistrial as i specifically recall when this issue arose how i can make the best record in the context of the trial in the context of what i consider to be a very significant was sixteen violation and i made a decision that it was that was not appropriate or the best record for me to ask for a mistrial but i did very strongly object to the admission of this testimony and the admission of this report and i specifically recall using the term ambush and talking about that judge how that's exactly how we felt that we were ambushed by this document that was in preparation for at least a month before trial so in terms of the chronology and the objections that were made that was my objection on behalf of mr comey that this testimony should not be received by the court and further with respect to mr scherer he specifically testified that