my intent to rely on the merits of briefing in this case i will try simply to synthesize mr stone's position we raised three all that mr stone has successfully served his prison time and he is home and he is under supervised release and at least as of today has been doing well and hasn't had any issues in terms of my st issue the rule twenty nine matter again i think the jurisprudence is very well known we would rise done the  evidence adieus during the course of trial and we would submit as we did in our briefing that the transactions were arm's length good faith matters and events that were kickback matter and count three i will sit back unless there are some specific questions the core has concerning mr stone i know in terms of the constitutional  the petition for certain had been granted in that particular matter the court wants to follow up on that i'll try to address those questions as best i can outside of that we would ask for relief as we argued for in the brief as i please the court my name is vincent citroen i represent larry howard we raised two issues in our brief that we believe merit your attention this morning as the issue one mr howard contends that the government introduced evidence that generally paid to ten as a bad person worthy of punishment but the government failed to introduce a fish it's circumstantial evidence a jury could use to make a reasonable inference that tri care paid or could have paid m mr howard of his th amendment right to only be put to trial for offenses the grand jury saw fit to charge simply put nothing in the record can assure the court mr howard was convicted for the same five thousand dollars check written on april one robert luck and as i understand the constructive amendment case law it requires that there be some difference in the evidence in an essential element of the crime is that correct for a variance your honor that is correct for constructive amendment variances a difference in evidence that creates a prejudices of the defendant substantial rights but doesn't necessarily affect an essential element so with regard to constructive amendment which is the one that's per se reversible on the one that you argu correct isn't that exactly the evidence that the government presented with the government presented evidence to discrete criminal acts of the government the government also charged a conspiracy which incorporates a large number of things that happened i mean they're entitled to present evidence additional evidence of other acts that go to the conspiracy that are separate and apart from count four and so my question is with regard to count four didn't the government present exactly those elements that i just stated payment of five thousand dollars on this particular date and willfully and i know you stand that your challenge and it was done willfully or not but but that they presented that evidence yes that is correct they presented those elements that the statutory requirement for the charge but the got and how was that a constructive amendment if they also presented other evidence that went to a different charge this case the conspiracy goes to the government is unable to tell this court which check was an extract of lee and or twine evidence relevant to the conspiracy in which checklist car char and permits the judge or the prosecutor to decide which acts that occurred on the same day same time that are not specifically defined sense that the grand jury charged that media violation of the grand jury clause but how is that a constructive amendment that the essential element that that's the argument there and i think those at the variance issue not a constructive amendment issue but the element is different because the the the actual controlled substance that was charged by the grand jury was different here there was a date there was an amount and there was an alleged allegedly will payment that's exactly what the government charge here nothing different but the government through here nothing different right well i can't say they proved something different than what the grand jury saw because we never isn't in that and then isn't that the at the end of the answer in other words you may have an objection on a different ground it may be wrong for different reasons and i think i just told you at least three of them that i could see but not the one that you objected to a trial and not the one that you are getting your brief right  think we raised that particular issue i think trying to fit this into either a variance issue is like trying to stick a round peg in a square hole if you have alleging your grief that this is a variance in violation of the constitution isn't that exactly why i believe it was one of the our going to raise that if the court was inclined to see it as a variance the prejudice still exists and that is unable to conclusively determine from the record before the court that the check alleged in count fo we did not ask for any relevant jury instruction we heard you did you ask more jury in rockets or to specify the check that the jury was finding that could we argue to the jury that they were one and no other women serve as the basis for or well with all due respect your honor there was no proof that agent crenshaw testified before the grand jury we made a jenks motion before each witness testified no grand jury transcript was turned over in how is that different from what the agent testified to as an investment five that out of the two checks the jury saw one was specifically referred to by the grand jury and it does not appear that agent crenshaw either testified before the grand jury and certainly and he brings a double jeopardy claim council let me let me go back to my original question if your problem is the jury didn't specify which of the two checked it beyond reasonable doubt or didn't the more specific specify that if both checked beyond a reasonable doubt then why didn't you ask for a jury instruction that the jury couldn't convict unless it both checks beyond a reasonable doubt all are in a wrong dettori to the jury specify which check are both checks if found beyond a reasonable doubt to preserve your issues we are i believe we we believe that we preserve our correct the law would have supported a jury in iraq a tory if the obligation of the court is to ensure that the conviction that the jury determines based on proof beyond a reasonable doubt of a particular check or checks matches to check with the grand jury specify then you have an obligation to preserve your objection to ask that the judge require the jury to specify that instructed jury can't convict unless it is both why not i mean why shouldn't that be your burden to preserve to avoid the violation that you see here and to void the injury that you that i believe it would have been our obligation we should have done so in hindsight but i don't think the obligation rests with us when it goes to a error into the set and then and the court was well apprised as well as the government as to our position on he took into consideration the collateral consequences he took into consideration deterrence that would be involved namely the fact that she would lose her medical license down out of  a role in writing a lot of he further stated that he has lived a life of without trouble she's done a lot for the community she risked losing her medical license i believe as  in my break the state could just take it through criminal or civil forfeiture and he found that the situation warrants enough for a downward departure after considering many numerous factors which it was just a nd issue he actually one of the things we were pointing out is that forty turns i believe how much he actually gain which was just on one hundred and forty thousand dollars would have been a main factor because i believe in deterring there's  st of all in white collar cases and specifically in health care fraud cases health care fraud is especially significant because it is so rampant and the government doesn't have the resources to prosecute but that's true you don't do you know that and this is a follow up to that question in other and i don't know the answer with regard to doctors but i do know with regard to other agencies in florida even if there is a disbarment or d relocation that's often done for a term of years and not necessarily permanent in other words it allows the offender to reapply after a certain period of time  convicted felon of course that's true and everybody who is convicted of a felony and also for lack of criminal history and again as this court had noted that criminal history category one takes into account a defendant's criminal history and in fact again the white collar area the majority of defendants according to sentencing commission data are in category one and then consequences can or cannot be taken to account in the three thousand five hundred and fifty three context well i don't believe that i'm not aware that this court has made that statement generally but the court has very significant their hands so even if the collateral consequences are appropriately considered they certainly wouldn't justify the kind of variance that the court imposed here stopped because tri care changed its reimbursement policy and howard stopped the missing plane as the court noted it was noted she was the top prescription writer for howard she wrote close to that she did not give any sort of clinical examination to or patients that she never even saw yes there was evidence of that so that was obviously not a focus of the trial because the trial was just on the kickback is true but that was bramwell and then she asked about whether the wife had scars or pain and then the wife ended up getting these creams she never saw the doctor bramwell never saw the wife and this decision was some i believe it was sixty one percent of the patients whom she wrote prescriptions were from out of state again maybe she was engaged in some kind of telemedicine i don't not sure priest pandemic that was such a prevalent practice she didn't follow up with her patients after to try to hear reimbursement policy change that they were medically necessary before the end of april that should have become medically medically  unnecessary after that point at least without some and that was that it is that kind of evidence inconsistent with the findings of the trial court that this was unlike other health care fraud conspiracies but this was just essential as a man or a pay to play scheme takes money from these health insurance plans tri care which is insurance veterans and military and what it does is take money from from that and a lot of money in this case and in many of these cases so it is a very serious offense in the trial court specifically stated page eighty seven dollars of the sentencing transcript quote that this was somehow uniquely different than an outright fraud for which a prescription is necessary this was more of a matter of generating an interest generating a client base and then writing the prescriptions to capitalize on that which ended when reimbursement rates change in other words these are people who actually needed that stuff and the only thing that was different was some sort of you know payment to generate business the evidence seems inconsistent with that finding th was that it was a question of generating interest well generated interest because dr graham always paid to generate interest that was the only reason that interest was generated for this event so certainly there is some health care fraud offenses and i know the court is a factor that the district court can consider and could be a factor that warrants a variance from the guideline sentence and the government is certainly not arguing that a sentence less than the there are no other questions about our government cross appeal the defendants all salaries the sufficiency although they were not specifically argued here so unless the court has any questions course questions the court i just as our position in that what was charged was what was proven there was no constructive amendments and to the extent that on i'd certainly have seen the evidence of the facts what evidence was there to support the defrauding objective your honor i believe it was it was the same theory and the jury was instructed that it only had to i would suggest the government really didn't give me a whole lot to comment on so again unless there are really any outstanding concerns i can try to address for the court i too would rest on the on the merits briefing and would be more than prepared to submit mr stone's case for consideration again this is the principal issue here as is the sufficiency of the evidence even if looking at the evidence educed in the court below in the light most favorable in the prosecution we take the position that it's insufficient as a matter of law to allow the convictions  stand and obviously we have the remaining constitutional issue that might come into play in terms of invalidating mr stone's convictions and again outside that i know the guideline issue is there but  two minutes to answer any argument a miss heller about your client thank you your honor like mr lyons i find myself with not a lot of response to the government's argument we will stand on our brief as to the st issue and that is simply imploring the court to take a close analysis of the evidence specifically the critical element of intent that was necessary while we understand the status of the position of the appeal and the appellate standard that circumstantial evidence had to permitted to jury to make a reasonable inference which requires the court to look into the quantity and quality of the evidence presented and we believe as a matter of it's insufficient to paint mr howard as an unsavory individual who was greedy and took advantage of a business opportunity to try care provided to everybody and unless the court has questions will over a line which i one of the issues miss helen brought up with status in the community it's my understanding from the reading of that case all they were saying that status in the community mean you can't argue for less than things by saying he's a just member of the community but my understand the case law is that you can still take into consideration collateral consequences like losing something such as a medical license and i know the i know the court brought up the fact that she did not lose her medical license i can say that with this up on line with the department of health it's been a while but a few months ago i looked it up and she did still have her medical license but i believe judge byron said that she was likely to lose her license not that she will and i think it's our opinion that that is still a major factor in deterren because in any one of these cases where medical profession uses the license to commit a crime the government can just flat out take their life and it's not something i'm not  my understanding is that these licenses constitute property and that the government can have a doctor forfeit the license through civil forfeiture or even criminal forfeiture if it's used in a crime away put it on the floor and step on thought it was to be used for some other purpose or to go to the united states treasury often happens to law enforcement and it's my understanding that even these cars used in selling drugs and stuff they can just flat out seize the car that they used in trafficking drugs or transporting drugs and you know mines and but they don't go bury the call the car has other uses the title passes to someone else likelihood she'll lose her license well i'm saying that the government believes that these steps are necessary to deter crimes and i believe that's part of the reasons why they had these laws they do have the right to do that in order to therefore the district court was more likely correct in predicting that she would lose or lost no but the government does have disposals in saint the such as taking somebodies license as part of deterrence and if they did want to do something like that to do her crime that is an option they have if they believe it's necessary to do to deter crime the government obviously in this case use their discretion not to do that