any time to the government's theory for justifying the admission of proffer statements undermines the sixth amendment requirement of meaningful adversarial testing at trial i the threshold is just impeaching the witness or highlighting the absence of easily obtained corroboration either the defense must remain mute or the government always gets to introduce the proffer same and used this way proffer statements that are a simple excuse to forego investigation developing compelling evidence beyond a reasonable doubt an avoid meaning adversarial testing by limiting defense counsel to a minimal non adversarial those are the two points i was going to focus on so that those of the two of the most compelling arguments in your view that you're raising on appeal one is the constructive amendment and the other one is the use of the proffer statements i think there are including the billing and i'd like to focus the court for a moment also on the fact that it's not just a conflict of amendment issue but a journey instruction problem as well the jury never addressed whether they didn't the verdict form it didn't have to address in any writing whatsoever jerk the jury never had to find that there was a false writing involved so in addition to the construct of amended i think equally importantly is the fact of whether the jury had their addresses or do you think that he didn't find  a false writing that contains a false entry or statement and the this is a problem of the government's own making they could have charged this under any number of different we'll tell you trial coun below i i assisted trial counsel ok so let me let me explore your constructive amendment argument because you know we've got the record on appeal but it's much easier when you're there in the in the heat at the trial to figure out how the evidence came in in the indictment this is how i understand your argument in the indictment the government identified a writing career as purportedly containing false statements and that writing identif indictment was false treatment notes correct and so your theory as i understand it your argument is that well the indictment limited in that in that fashion but the jury instruction opened it up so now we don't know whether the jury found that the relevant writing was the falsify treatment notes or whether it some other writings right did i understand your argument correctly so that's why i'm asking you w there evidence presented during the trial that may have connect that mr chalk to any other writings because frankly if the only evidence that presented at trial connected him solely to the treatment notes  i don't see your argument really playing out in your favor because while the jury instruction may have been brought or if there wasn't any evidence of anything else other than treatment notes that he was involved in then where is the constructive  honor i think the bigger problem is the jury putting aside the construct of abandon the jury wasn't even asked to consider whether there was a false writing a false writing is a specifically it's the term this is defined in the common law as an unauthorized afford writing and that i think is the central point there were no ford writings there was no nothing there was no false writing as defined in the common law and i just like to use a simple example which would be like a birth certificate if the county issues it and it has false information about the name the parents names the place or date of birth that's not a false writing even though it contains false information on the other hand if somebody is that the at home and created from a computer template even if it contains all the correct information it's not an authorized document it's not issued by who it's purported to be as you write that's a false writing and here we don't have any those transcribed versions of his notes into medicare he endorsed them and authenticated them so there is no false writing in this case putting aside even if even if the jury was limited to just throw in only consider just those notes they weren't false writings and the jury was even asked to consider if they qualified as a false writing because they were allowed to convict for any statement at any time the government has three reasons that they were transcribed that they were transcribed by someone else and that they contain errors i'm really running down on the clock if if any of those are hang ups and then i could claim or explain why those don't transform these back into false writings otherwise and i know your second point was the usef the proffer statements yes i'm assuming this was a standard proffer session where  the defendant was offered a queen for a day letter it was a queen for a day letter and it was limited to refuting or countering and here the district judge applied the wrong standard she didn't ask whether there was a specific factual assertions that the gover that child had made but generally opened it up for any kind of or bottle and that it was a general repository and the case was very clear that one must look for a specific factual assertion shortcomings in the government's evidence it's that is not just something that can be refuted or countered by without a specific statement and chomped made no specific state government i'm sorry the court's focus in deciding whether to admit the proffer statements was things like the jury shouldn't believe in this is pat she's a liar or if the are sixty six and that the defense characterized the testimony of mrs pac as line which is why they didn't see they characterize testimony part of it that she didn't pay cash where's the child that he actually received cash from or it physical therapy as to sides to this treatment there's two things one is with regard to mrs pac there was no dispute about cast that was in question it was a question whether it was all in cash or  involved and because of that he was represented by a civil attorney who had no criminal experience who who would have immediately referred him out the criminal counsel if he thought he was a target and represented his troy as well as m what is the evidence that was a target at that time i mean you're essentially saying that the a usa misrepresented her status is there any evidence of that the civil investigator represented that mr char and his business was a target and then the case agent who worked with the indicting attorney said trial was a target and when they showed up in the interview room they treated him like a target they were ready with documents to cross examine him about those about those items and it wasn't just explained to us it was hard grilling cross examination hucky of the target there was that he had died and was already returned government says you're not a target then the indictment comes down about two days after the lawyers lawyers have conversation and then about well following month i think he comes in for the interview doesn't he was a target that point not just a witness there was no hearing your honor there was no he i mean that's another part of the problem there was no hearing at which at which this he's facts could have been elaborated in clarified although there were specific allegations the government the government lawyer who will lead misrepresented its targets that it has never denied that has never filed a declaration saying no no no when i said he was a only a witness that was my intention at the time the case that is correct but they were working together i mean case agents don't just work out on their own well what they control is what percent of the i don't i haven't been and in a usa i would assume that the usa controls what's presented but that doesn't mean that the two are not working in tandem and they would have communications about what's our target objective who are our targets what our goals for those are anything in the record to show that he's a distraught when you're talking about anything that he actually told miss williams about the him we haven't had and we haven't had a hearing your honor so v under the false writing a document theory of the statute it charged the patient files as the false writing her documents and it charged the falsified treatment knows within those  as the false statements and that's important because i think that makes clear that whatever evidence of other false statements in the pollution files the defense may have been concerned about they were not uncharged they were within in files that were charged as the false documents so now you're saying that the government isn't limited to phosphate treatment notes because it mentioned patient files generally so that opens it all up for the government why i don't know that we need to to focus on that was there evidence presented it faults writings that mr child was involved in beyond the falsified treatment no no and that is to say that the government did not produce evidence that the defendant was responsible for or involved in other false writings false statements and the government did not argue that and in fact to the contrary and here i would just refer the court back to pages thirty four and thirty five for answering brief  government to great pains to explain multiple times that the false treatment no it's worth the false statements and so that was done multiple times in closing indeed the entire closing was focused on on reminding the jury of that and in fact  not the false statements that the government was alleging the defendant made so the government took great pains to explain that but basically the construct of amendment argument fails because the evidence at trial matched the indictments allegations with respect to the proffer v i think it's important first to to respond to the very serious allegation of misrepresentation by the former usa here the record does not suggest that the prosecutor was lying when she told defendant that he was not a target at the time for the proffer agreement and in fact the court made factual findings on this and here i'm referring to the order denying a motion for a new trial that said excerpts of record fifty and the government excuse me the court found that quote the factual record does not support chas argument close quote that he was fraudulent we induced the fact of the matter is people come in for  an investigative tool for the government and the and in this case mr chow became a target after his proffer and that's supported by the record because what you see is that on the same day scene a choice the physical therapy assistant who  defendant asked to insert the false treatment notes into the patient files she came in for a proffer as well on the same day and based on her proffer based on defendant's proffer based on additional that mr shah's proffer meeting on or about august eleventh of two thousand and eleven was in the days following the first indictment in this case and so the government was seeking to determine who was responsible but he didn't know at that point and i said this is pretty unusual because i haven't seen that before and normally these issues don't come up because presumably the a usa and agents are on the same page about who's a target who's a witness and sure you know during the investigation you've got the biggest fish sure officious in this case be the targets and then everybody else can be a witness because you're trying to find witnesses to shore up the trial but what's unusual in this case is that there are some agents who made statements indicating that mr child was i think one said he was on he was on my radar know the one thought they might have been a target so can you talk to me about that record and whether like first of all what is that record and secondly whether that's sufficient to trigger some type of an evidentiary hearing ok well i think the record reflects that the investigator the civil investigator the course referring to was agent was investigator salazar and he certainly was investigating physical therapy fraudulent physical therapy billing generally and i think the record reflects that was done using quantitative tools to identify a sort of where these feelings were coming from so but again he was a civil investigator and the fact that he was you know aware of defendant or the defendant as a bill or was someone who he was aware had a high percentage of physical therapy billings which i believe the record reflects that doesn't make defendant a criminal target that determination as the court one of your honor's referred to earlier is a determination for the it is not for the case agent and while it's true that in some cases case agents and usa see eye to eye on that it is often the case that agencies wish us wish for our office to treat someone as a target and we disagree n august two thousand and eleven and they're talking to everybody else who was related to this office operation is that what you say yes and the record was it what you need investigation was somewhat complicated as i as i viewed the record by the fact that we did have language issues so that says there were documents that had korean handwriting on them and i think the record reflects in terms of the sequence of the to my office continue to investigate this for several months but on the basis of not only seen a choice later flipping after her proffer and cooperating with the government and taking responsibility and saying that pointing out the defendant had asked her to insert these notes but also based on other evidence such as bank records and patient files that are listed at government's excerpt of record for twenty seven i believe that in a footnote on the basis of all that subsequent investigation defendant leader became a target and the district court relied on the ready decision precedent of this circuit and i just want to direct the court's attention to page four of seven of the ready decision that's three fourteen f third four zero two united states to be ready at page for seven because that makes clear that this circuit supports the permits it mission of proffer statements where the triggering of the admission of proffer statements based on implications from questions and cross examination and i say that to respond to a point the defendant raised unless there further questions also meant thank let's put two minutes on the clock thank you very much just a couple of quick points first i just want to we had a right the construct of the issue with is i think the primary issue for the court is going to be of the jury instructions not just the construct of amendment something the jury was not asked to find and as i explained i don't think they could have found that there was a false waiting for the government the only reference to a writing that the government made during its closing argument w simple reference quoting of the instruction at the beginning beyond that they never focused the jury on writing they just talked about all sorts as to the scope and sort of timing sequence the government did a substantial amount of pre and item an investigation i don't think that it was purely and you and just putting the trial together that they went to interview mr in to meet with the grand the agents and that was a specific allegation and that was obviously a very devastating allegation and wendy cho was brought for the specific purpose of saying i was there for the entire time edward char and seen a choice were in the same room i was at that place at the same time there was no opportunity for mr child to of made that he didn't leave the room i was with him that never happened and the and the  district court said well we can introduce that because it's general there was no specific factual assertion that was being contradicted and simply with regard to ready just like you thank you very much for your argument about cites the matter submit it for the session