the morning honors may please the court representing valerie bottom only and i'd like to reserve two minutes of my time for a battle if i may your honor i'd like to clarify at least two parts of the instructional error argument to start with the first is that and to be absolutely clear instruction fourteen standing alone with god a correct statement of law it instructed the jury to substitute every and indictment for and or effectively permitting the jury to convict mr b then say when i say and i mean your right and it wasn't clear therefore what's the problem well the substantive elements instruction was also a clarification of what the indictment said that's how it was phrased and instruction fourteen wasn't necessarily just why instruction fourteen is plainly an incorrect statement of law it is taken out of context from the banana case it state it instructed the jury to switch out every and friend or in the indictment but also discussed how that affected the government's  was followed by the substantive elements instruction which stated that it was clarifying what the indictment said but it's not just what the indictment said it's the ways that's the word that's used in instruction fourteen the ways in which the offense was committed and the ways would more naturally relate to the specific instances given in the indictment and not the culpable mental state w again the instruction fourteen standing alone is still an incorrect statement of law it does not state so the principle of law the government relies on for this is that when a statute denounces two or more ways in which an offense may be committed all may be alleged  your client violated eighteen u s c thirteen forty seven him both possible ways but i don't see how that applies to the conjunctive phrasing of the member state in the later instruction i think i understand your honour's question correctly you don't believe that instruction fourteen is connected to instruction fifteen which is the substantive elements and traction that follows right away but it the way that this was read to the jury was in trucks and fourteen immediately proceeded except in trucks of fifteen in fact i think instruction fifteen compounded the air because the only cause that was joined by end was the mens rea a clause just before having been the jury have heard well everywhere in that it says and you can replace that with it or in the indictment and then here's what the indictment s the a minute element was uncontested which it is was directly contested here in fact the entire defense case was whether or not mr bouck momi had personally and willfully directed the fraud and that the evidence had to be so overwhelming and in this case i don't i don't think that it meets that standard and this is different from the sufficiency of evidence standard that you know you were discussing in the previous case where you make all reasonable inferences in favor of the government here the government's evidence has to be you know so sufficient not sufficient sorry so overwhelming such a welcome as that that it that it 's ok and well it seems to me that on a plane or argument and you're asking me to conclude that the jury would take an instruction clearly relating to the and indictment and apply it to the jury the honest truth is i don't know how to get past the idea that you're asking me to conclude that the jury took the instruction clearly relating to the indictment and applied it to another instruction substitute every and in the indictment for it but were they health care fraud instruction clearly states that the defendant must commit the crime knowingly and willfully and it also states that these elements are clarification of the substitute every inference or i think it's a stretch to tend to believe that a juror wouldn't know that we know the difference between the indictment statements and what's not stated here which is again modified as to the indictment let me ask you what is the significance of the circumstance that the instructions were jointly submitted does that put it in a different box then the government submitting them and the defendant not objecting to them so your hon of those instructions now as you can see from the government's excerpt records and i apologize for not personally submitting the joint jointly proposed jury instructions the government crafted these during structures and we signed on to them and or the defense attorney at the time signed on to them  and so in united states versus where the circuit clearly held that when there is no clear evidence about what how much input the defendant gave into the crafting those instructions that the other standards of review should apply either playing there or do novo and i would argue that even under the instruction and automatically assume the jury will ignore its instructions to take the jury instructions as they are and do what they have to do and then take the language in one instruction and automatically impose it on another instruction that does and say the same thing at all i think when they're going to says knowingly and willfully the defendant knowingly and willfully participated in the everything else in this list here the indictment does have all of the stuff in it if we would if you want it to your honor's want to turn to the indictment which is on page e r for three five it actually says all of this information indictment clarifies these elements and this and this very very terrible thing that you're saying happened nobody objects at trial nobody objects to the instructions nobody says anything about it until we get on appeal and all of a sudden it's plain air your honor i think because the context of the language was take the language that was taken or put placed into instruction fourteen excuse me well but just a minute are you suggesting that coun did never write a chance to object i'm not suggesting all right so they didn't object and all i was pointing out to you is first of all i've got a standard or review and after i've got a standard or view then i have an instruction that says the jury supposed to do what the judge tells of the do and the judge gives them an instruction that is dead on what the indicted and suggests and then gives them another instruction that's different from that instruction and your suggesting on playing their review i've got to take one instruction that's given before and adopt the language of that into the second instruction and i'm having a tough time on player of you doing that and i can't find yet a good answer for the roof or why i should have an easy time was either medically unnecessary or never provided there was no error his his trial or the calculation of his sentence and all the claims to the contrary are waived entirely reviewable only for plain error or merit less now  appears that the court was mostly focused on the jury instruction issue i'm happy to answer questions on any of the issues we brief but i'll start with that one i want to focus first on the standard of review i think there was some considerable discussion and my colleagues presentation  you did not apply to novo standards strictly because in the words of the court it's only when there's a question of law that doesn't cause prejudice to the other party and there the court said had that issue been raised below the government could have put on additional a little bit but i think there was also a question of whether this being a jointly proposed instruction changes the analysis some way i think i will agree with my counsel that the government did not argue here that it was invited error such that it's not at all i think that's because it wasn't clear that this sequencing problem that the defendant now claims on appeal was you know made aware to the parties below but had it been the court or the government could have fashioned the instructions in some other way to really a point seems to be at a kind of been some plane because the defense attorney we would certainly i would agree with that night i think the most important thing that i want to point to is if i could direct your attention your honor's attention to the supplemental excerpts of record at seventy nine through eighty one these are the copy of the jury instructions that went back to the jury room with and in that instance the instruction fourteen the so called conjunctive instruction appears on a completely different page refers where there are references to other aspects of the indictment such as whether the government has to prove on or about a particular day or approximate amounts of claims to medicare instruction fifteen which sets out the elements of health care fraud is again in a separate instruction and so it's somewhat misleading when it's read on the record or when it's reciting in the defendant's opening brief a sort of one straight instruction it wasn't and i think that that belies any indication that the jury would have confused the elements that are required in the instruction in instruction number fourteen which i would disagree with the defendant here is that it is an accurate statement of the law and in fact it accurately explain the government is the government is obligated to prove can prove that that the defendant committed healthcare fraud in one of two ways by either executing a scheme to defraud or by submitting false and fraudulent documents in an effort to obtain money from to care and so that is an accurate statement of the law and instruction fifteen was an accurate statement of law that the government was required to prove that the defendant acted both knowingly and willfully in execution of the scheme and those instructions on the elements of health care fraud the knowingly and willfully instructions track the ninth circuit model jury instructions so there is no claim by the defendant here on appeal that those in accurately state the law but i think the obstruction fifteen also makes clear as was read in your honour's a moment ago that the government must prove each of the elements beyond a reasonable doubt and then it includes both the terms knowing and willfully so again that would dispel any confusion if there were any from the previous instruction that the government was required to prove both mental states and i think even were there any confusion in the instructions the government has demonstrated that on plane air review the year was more than sufficient evidence for a we made that argument are briefs yes in fact that there was evidence of willfulness here in many different ways principally as this court noted in a wad where in that case the jury was incorrectly instructed on willfulness in fact it was instructed on the complete opposite and  conviction anyways because it found that there was substantial evidence in the record to support a jury's finding the willfulness specifically that the defendant signed certifications that submitting false information could subject them to criminal liability and yet for respiratory treatments that were not performed anyways the same is true here there is evidence in the record government exhibit number four which is that that c r one forty four and government exhibit six s e r one seventy three that the defended acknowledged on broy any rational sure must conclude under the plane eric hasta it's whether there was an impact on his substantial rights and as this court concluded and it was there was not because of the evidence of willfulness it was other evidence of will the trial counsel specific sensually specifically said she did want here that's correct your honor if you're referring to any incident involving the courtroom conduct of the defendant's brother felix in this case that is true in contrast what we were talking about earlier with invited error here the record clearly demonstrates that under this court standard set forth in pres this was a intentional relinquishment of a known right my personal pleasure she said i'll get back to you and she didn't so when i went up in the air at some point well i think that it's more than just i'll get back to you i mean there was a discussion of defense counsel on the record about oh well there are certain alternatives that we can do here and one is we could walk here the jury but i'm not so sure that's a great idea because it could cause more problems wasn't discussed again on that record it's clear that the district court can't be faulted for failing to sue a spontaneous a year the jury when there was an express indication from defense counsel as there might have been some negative repercussions from that so in that respect i think the district court acted reasonably and certainly this claim was not reviewable because of the invited aired was there a misstatement by the government in its closing argument with regard to what the passports showed the two passports no i don't believe there was a misstatement in the evidence with regard to the passports the passports are included in the supplemental excerpts of record at s e r three forty one and three forty seven the jury had those available to them i think you know there was as a as borne out in the reply brief here a disconnect between the parties initially in our in our first two briefs as to what exactly the complaint was regarding the passports and the government initially in its answering brief assumed that it was the argument that was presented below that was actually the only thing that was objected to by defense counsel in that in the summer in the closing argument which was that there was no evidence that immigrations customs official or customs and border patrol didn't stamp his passport on his return to the country in the defendant's reply brief he makes clear no that's not the argument that's being made versus prosecutorial misconduct it's that the prosecutor f third ten twelve very similar situation where the claim of prosecutorial misconduct was there's no evidence that the defendant had been sexually abused here when in fact the court the defense had put on such ev court in that case recognize that they are the prosecutor was offering argument as to how the jury shouldn't terp at the evidence and here as the closing argument made clear they the juror the prosecutors told the jury you will have these passports you it's up to you to determine to them but they're inconclusive their stance is hard to read and in that respect given that interpretation the fair rate if we read the comments made by the prosecutor was in fact that there was nothing given the your honors i'd just like to clarify for the record that i don't believe review of the instructional error should be for play there i do believe that this court's law this circuit's law states that this court can review a pure question of laws to novo and that the issue of whether or not an instruction is proper under the has alleged in the constructor they can prove it in the district right only where the statue denounces it in the disjunctive to start with so it starts with the statue itself and as long as the statute denounces in most cases certain actions