good morning your honors and may it please the court name is walter woodruff and i represent gertrude parker and rodney harrison and their appeal challenging their convictions for conspiracy to commit medicare fraud in violation of eighteen u s c thirteen fourteen as well as a conviction for conspiracy to make false statements related to health care matters in violation of eighteen u s c section three seventy one i did not each was convicted of a single count of those violations and i like to thank the court for the opportunity i'm grateful to be able to argue before you here today and while my briefing submitted several issues and i realize that my primary purpose here this morning is to answer your questions i hope to focus on three issues that i believe are most august issues of the first issue that i'd like to discuss will be the whether the district court acted in abus discretion when it refused to allow defense counsel the opportunity to individually what dear seven potential jurors who had expressed prejudice if you will or express their concerns to look at the jury and say well if they didn't serve could there really be any violation of law dear and i think that there's still can be the fact that they didn't serve is not really where the error comes in the earth comes in is when the much points were deprived the right to further explore with these seven people whether their prejudices could be rehabilitated or whether they could put those prejudices assad you have a case if a juror prospective juror is biased and therefore cause should have been stricken for cause but counsels obliged to use a peremptory you have a case that says that even though they didn't see it as a biased juror there still is reversible error because counsel was obliged to use a peremptory the fact there's a case i juror cause forcing the litigant to use a peremptory was ever in the court said it was not that's not our question we don't have enough information here to know whether any of the seven were struck a bill for cause because we were not permitted to ask a follow up  way you framed the question do you have does it this seems to me just a question of who gets to control individualized for dear right because judge bar b a did say hey does anybody still have any lingering concerns about the back conviction essentially and three said yes then he wanted to hear them and as i understand it they are they were all he struck all so all three of those were yes or no is the individualized more dear so is your position just that in federal criminal cases attorneys have to do the follow up question but i think will twenty four says your honor that gives the district court judge the preliminary authority to do that but it also says that the judge shall of follow up questions if he deems those questions are proper and here mr heston if you read audio portion of the transcript with all due respect to judge harvey i don't think he was doing a good job of who he was all over the place with trying to get these people rehabilitated and he kept asking the question can you receive the evidence can you can you listen to the evidence can you listen to the evidence and those three that were called up two of them initially said yes i can listen to the evidence i can listen to this evidence but it's still in the back of my mind that he has this prior conviction and i think not only would i hold that against him for purposes of thinking he was more likely culpable for this violation than he would otherwise be i also have a hard time finding his testimony credible should he take the stand so essentially what they were saying was they had a real problem giving these clients the benefit of the presumption of innocence and when mr fanning who was defense counsel to robin has and said judge can i ask a question he said sure his question very simply cut to the heart of the matter and this question was simple would you give my client the same benefit of the doubt as you would anyone else who did not have this conviction in the answer was no and almost a family wanted to do was to ask that same formulated question to those other read the transcript i mean judge bar b a kept refining his question to can you receive the evidence can you receive the evidence he really didn't go deeply into these clients or this client is cloaked with the presumption of innocence but the defen counsel's question at sidebar which the other seven did not hear and juror thirty six who was the third of those three stricken basically vacillated a little bit she when the judge was asking her his formulated question she was saying yes i think i can do it i think i can do it but when mr fanning asked his question that's when it teased out the precise answer no i can't what is your theory of arming basically wasted peremptory challenges that you wish you could have saved for later yes i think we used all seven so we but my clients were forced to use seven of those as to those seven prospective jurors because they were by that being allowed to ask that question your honor they could not make intelligent useful use of those exceptions that matters if all that matters are that the ends justify the means then what is the purpose of a pointer exception because exceptions for cause would get prejudicial people off the jury exceptions for cause in and of themselves would guarantee rights and in in the case of united states versus martina salazar that was a case where they found that the defendants use of a single point three exception because a district court would not kick the prospective juror for cause the use of that single point preception was not a violation of the sixth amendment this quite this case is different because it we're not we don't know whether any of the seven would have been put off for cause what i do feel fairly confident about is had they answered mr fanning squash in the way juror thirty six did they would have been put off because judge barbier had no problem as soon as that juror thirty six answered mr van expression he had no problem putting the juror off for cause the record myself it looked like he did carefully caution that the charged offense was not the prior conviction that hasn't had they shouldn't he did your honor but i don't think he came close enough to explaining the presumption of innocence which with which my client was cloaked and again when he kept following up when these ten people indicated a problem upon learning of this prior conviction he kept going back to can you hear the evidence can you listen to the but prior to the filing of my supplemental or my reply brief this court handed down its decision in united states versus ganji that was a health care fraud case in which a defendant  g davis who owned the clinic was indicted along with a couple of the doctors from that clinic and should be appealed her conviction and the court found  that the evidence was insufficient to sustain ms davis is a conviction essentially the evidence in that case amounted to nothing more than her being in proximity to the activities of other sufficient to establish that this person knowingly and voluntarily entered into an agreement that had a lawful purpose and i thing in this case the parallels are uncanny you know ms davis was not a physician she was an accountant and the government in that case tried to say well look she really had a lot of ministerial things she wrote checks she hired people she was involved in the day to day operations had to flip's the testify for the government  codefendant testified was cross examined were those factors in ganji also they were not in the end so the jury had a little bit more to come to its conclusions about the liberating dig in ignorance and i don't know that they had more to come to this far way we're actually right you member that quote i do remember it will send the eric brace so at that point doesn't the jury have sufficient room to say what we in for fraud here it's not just her position well it's not just her position  but beverly stubblefield does i think more than t i don't know that he'll be clothed with a laser glove on this parker stubblefield comes closer and she does say some things that are potentially incriminating but when i read the government's brief i mean the government  motion in limine and in response to some of the concerns that were raised in the in the government made a representation to the district court that this is a fraud case in which defendants are charged with conspiracy to commit health care fraud none of dr martian opinions or conclusions will touch upon the ultimate issues for the jury to decide that is whether defendants committed fraud by submitting false and fraudulent claims to medicare or whether they made false statements none of dr morse owns opinions touch upon defendants intent or mental state as an element of the offense or rather his opinions will only assist the jury in understanding the evidence and i think i think if you a fair reading of dr more songs testimony establishes that he impermissibly opined on the defendant's requisite intent to defraud medicare by essentially stating that they acted with the requisite intent to defraud the government for the purposes of their own profit in my briefing i set forth several quotes that i can either hold with what he was the government said he was going to testify to also i think it's over the line of seventy four b or seventy four because he testifies to their mental state and again i would like to remind the court that these or he's interpreted e mails of which he is not a participant he's reading these as a detached third party trying to infer what the mindset in the state of mind is were of these interlocutors interviewing one email i think this is a very revealing about the sort of goals and focus of nursing home psychological services this is an email that is focused on maintaining company profits without any concern for patient care so that speaks to the profit aspect that another one of the i see in e mail this e mail is their effort to make this ethically highly compromise activity more accessible and more justifiable to the psychologist even though it should not be i think it's agreed has completely agree just in an ethical and roll with these e mails taken together represent the ultimate goal of nursing home psychological services which was to generate profit and assessing nursing home residents many of them on a responsible i think perhaps the worst case came when dr muslim was asked if he could summarize or they're still his overall opinion and he said this is the most egregious case of inappropriate psychological here in billings or two adults that i've ever seen and again i think many of these comments are over the line of seventy four b think they're all over good morning and may it please the court johnny alex and for the united states the jury for deer was sufficient but the court need not reach that issue because the defense telling only the very idea of prospective jurors who did not end up on the jury the questioning during voir dire helps the defense today to determine whether or not they should be used their primary challenges on nature as the the defendant had heard enough based on that response to the first question they made a choice to cure any potential prejudiced from the lack of individual voir dire for those jurors by taking those jurors off the jury at for the record that was actually six peremptory challenges they used rather than seven because one of the seven jurors had already been struck for cause based on a scheduling issue but the use of the primary challenge is therefore guaranteed to the defendants all that the sixteenth amendment requires which is a trial by a fair and impartial jury so that you brief both ones the legal answer conclusive across all cases and other one factually the judge bar b a hear sufficiently inquire yes the government's position is that we should reach that sixth amendment a comprehensive legal and i think the court can certainly affirm based on the sufficiency of the w think the record speaks for itself here that showed that the judge was very careful in making sure that he sussed out any potential issues with these jurors would we want to reach the constitutional question first or is it just that it's been decided conclusively and if that's the position what's your here was sufficient here because the district court gave defense counsel the opportunity to conduct collective word here and that collective word here is what elicited the information that the defendants are now concerned about and the following initial answer to that question about the conviction being something that would be inclined to make them potentially disfavor at least mr has and the district court was careful to instruct the jury about the fact that that conviction was not a basis in which to find him guilty that he remained innocent as he sits as he sat in the courtroom and that the judge would be giving them very careful instructions about the limited uses to which they could put the conviction he then asked the jury whether any of them would have trouble following those instructions three of the jurors raised their hands i think you can tell from in that context that all of the jurors would have felt comfortable answering truthfully if they did have concerns because three of the ten did the other ten did not raise their did not raise their hands expressed no concerns the district court appropriately conducted additional fortier of those three jurors and decided to strike them based on their answers but there's and there's no indication on this record that there's that the seven jurors who said that they would be able to follow the court's instructions would not in fact have been able to follow those instructions so there is certainly on the merits of these sufficiency of the board here the court can affirm on that basis without reaching the precious question are the sticks and the question  with respect to the sufficiency of the evidence as to parker the evidence definitely showed that she was a knowing and intentional participant in the conspiracy this was not a situation of she perhaps should have known are maybe she didn't know the was it was corroborated by testimony from other witnesses who worked in the company as well as document documentary evidence so for example the evidence that it was parker who is promulgating the polit the fraudulent policy is at peace yes we know from one of the cooperat stubblefield she said that parker was the one developing the policies and procedures that testimony is an hour away twenty seven forty four but it's also confirmed by the orientation and john duffer in june two thousand and twelve orientation that the company held at the very beginning of p c s which you can find that is and at our way seventy one fifty two that agenda says that the person who was doing a presentation on policies and procedures for the company was parker then it is an hour seem to be positional right to the government to listen when it had an opportunity to cross examine the son did it elicit anything that directly implicated parker the mother in the overbilling in cross examination honor i don't recall any testimony what about any testimony of the flips did they ever say she was in cahoots anything like yes what's the best that i think that the best of the past quotas is one of the quotes that came up during employees who were not cooperators per se about how parker was monitoring billing and parker was paying attention to how much the psychologists were billing that she expected all of the psychologists to bill four to five hours per evaluation and that she would come after them if they didn't that she would they were only doing thirty minutes well we know from from other evidence that she knew that she knew that they were doing far more a valuation is a day than for forty five hours would allow so for example we have this at this email early on that she receives during her first six weeks involved in the company where one of the psychologist e mailed her you know what were the questions about compensation saying i need to be paid for all of these evaluations i've done she's reported how many evaluations she had done on different days on one day she said she had done seven evaluations you can find out e mail at our seventy two forty six that shows that from the very beginning parker knew that people were doing seven or more evaluations and yet she was expecting them to bill four to five hours per evaluation we also know that p c s developed a goal of ten to twelve valuations person i call it just we know that parker was the one developing the p t well it was yes i think that was that yes i was ten to twelve out evaluations a day and we also know from teresa ridgeway who is one of the lower level employees of the company that parker kind of fussed at her that's a quote when she didn't procure at least ten referrals for a nursing home visit the way these visits worked is that a psychologist an assistant went to the nursing home together and they would sort of tag team their way through these evaluations and so parker expected all of the assistance to make sure that what that when they went to a trial was that she had little involvement in the company's administrative matters and no involvement in medical matters our situation is very different we have direct testimony from among other people the clinical director of the company  who's the other key operator to run anything by her first before he spent anything out to the psychologist in the company and we know from the e mails that he was the person who is promulgating new policies we can and from the jury can infer from that testimony that he was running those by although used the word intrinsic at the very outset it looked to me there after he always said this is a different crime you can't use this to convict his instructions where he gave instructions that were consistent with a rule for a for b i don't think that suggests that he had  reconsidered his earlier ruling that it was intrinsic evidence i think perhaps he was just being very careful understanding how potentially dangerous that is to it is intrinsic then you don't need to adhere to any of four four b s restrictions the government then in closing could have said intrinsic in terms of it showed opportunity and preparation that still means it's extrinsic it's another act subject to four or four b s limitations looks to me that's how barbie a restricted that's how i would think it would have to come in right this crime didn't even overlap there was a year before the charge difference there right yes what case says that a fraud offense that occurs and is over with the year before a nother charge offense is somehow still intrinsic  where the government gets to introduce a prior conviction and say this is part of the conspiracy even though it's an over a year before the conspiracy starts you know any case that says i don't add up the top of my head i don't your honor but i think if this crate concludes that it is not intrinsic also instructed the jury i think that they could consider consider and evaluating his credibility and that it part of the explanation for why the mother took over yes now the prior and the prior conviction one who became the figurehead and so which it was so it was appropriate even as extensive evidence because it explained their knowledge their intent their motivations it was important context and it wasn't evidence that the government was attempting to use to say yes it is the type of person who commits medicare medicare fraud because he committed medicaid fraud in the past it instead explained why all of these coconspirators got together and why they were doing p c s and in fact it was it was important for the jury to to know that that a prior conviction was a piece of that story because otherwise they might have not have really accepted all of the evidence that p c s was just a continuation of an h p s policies in every respect they might have thought well this is a clean slate has and was no longer in the company and is now someone else running it but when you have when you have all of the evidence showing how what parker really in visions p c s is being was was a continuation of house and its work and she said that repeatedly multiple witnesses testified to that that she that she thought the company was too world worthwhile to let go and that she wanted this to the you know to keep doing the good work of the company and so that the prior conviction explains why it was necessary to change the name of the company and change the management of the company so i'd like to turn now to the expert issue marsyas testimony was not a clear obvious violation of rule seven a for b and in any event the defendants have not shown that the jury probably would have acquitted them but for the challenge testimony so to begin with this court has been  holding that it prohibits only a direct statement of intent or the functional equivalent of such a statement dr marson did not make it clear obvious statement of the defendant's intent other he criticised the company's practices he did not say that the defendants or others at the company engaged in those practices with an intent to defraud but even if he had made such a statement the jury would have convicted the defendants anyway because the other the other evidence in the case was sistan szell the testimony that the defendants have now shall and she was a small sliver of the overall evidence against the defendants it occupied only half an hour of testimony during a six day trial and the other evidence established that the defendants were developing and promulgating fraudulent policies of the company and that they were directing the psychologists to overbill directly cumulative of the e mails themselves understood in the context of dr marston's earlier testimony in which the defendants have not challenge dr marston's earlier testimony was about the general appropriateness of different psychological care procedures and billing practices and record keeping he explained in the abstract let was appropriate and what was not and then towards the end of his testimony the government showed these e mails to him and he then using the e mails as kind of a representation of the policies of the company he applied his earlier general statements to those policies explaining his views about how the policies of the company were inappropriate and were now satisfying ordinary standards of psychological care so the jury you know his final testimony certainly connected the dots for the jury a little bit but the jury would have drawn the same inferences based on the e mails themselves and dr marston's earlier testimony and event even if you had testified at all the other evidence in the trial made it very clear that the concern and h p s and p c s was not with patient care it was not with giving appropriate treatment the concern was making money the concern was getting as much money out of medicare as possible we know that has been was you know sometimes billing twenty or more a valuation is a day and he was billing five or more hours for each of those evaluations one year and he billed nine thousand hours to a single psychological testing code for medicare those put those policies and practices continued under parker parker personally trained the people in the company on the policies and procedures including among other things telling them when to bill answer any other questions on the final issue you didn't look like in your brief you were saying the joint several liability is correct legally in light of honey but your position is simply that they waive the issue is that or do order at all it's an issue that she hasn't developed but the forfeiture order even if the court wouldn't want to you know delve into that issue despite the fact that she hasn't briefed it it's neither clear nor obvious that the forfeiture order does require her to forfeit improper proceeds she was running this company when it was p c s p c s a quite a seven point three million dollars from medicare under her watch i think as the owner of the company you can say all of that w that she received the forfeiture order was was a bit higher than that but not so it was everything was a little more than a million dollars more than that but she also acquired any p s while it was still operating as and h p s that there was there was this transition period so there would have been additional proceeds that she presumably would have obtained during that transition period and again you know it's not clear on this record exactly what the all of all of that adds up to necessarily but the reason that the record isn't clear is because the defendants didn't raise one hundred cut objection below and had already been decided at the time of sentencing if the defendants were concerned that this forfeiture order required parker to forfeit proceeds that she didn't obtain they could have objected that they didn't speaking to the forum for the information think it's clear that this really was explains it when parker was in mississippi he was operating as a psychologist here he was operating consultant i don't certainly appreciate reference of him being a conciliatory or all the time attention to come with that term but he was in he was the director of marketing when under the second company p is a distinct indistinguishable event or an act that is not necessarily a problem and i step towards the charge conspiracy it is not considered in transit to get this conviction in mississippi was over a year before this i hardly think you can be deemed to be a step further it's of the conspiracy charged at p c s as far as dr marshall and whether the jury would have reached or drawn the same inferences based just on the e mails i highly doubt that  i mean dr morse on this calling into the mind of these people who had written the e mails saying what their mental states were what they were trying to do what they were trying to communicate finally i just want to touch back upon rule twenty four which does give the court the the right to examine prospective jurors or permit the attorneys to do so so the court can tend do that but part s two does say if the court examines the jurors it must permit the attorneys for the parties to ask for the questions that the court considers proper and i would just do my review in some asian is no substitute for this court reading i think the what do the poor portion of the transcript covering the what dear and that is found at record on appeal pages thirteen twenty eight to thirteen fifty three and i think there's little doubt that that further questioning would have been proper in light of