are you good morning your honour's adonis belly on behalf of defendants of far mehmood who appeals from multiple convictions for health care fraud money laundering i would like to reserve one minute of rebuttal time one of the key issues to his conduct and behavior at the trial he never you know raised it you got a problem with the fact that after some discussion in the beginning nothing appen for he argument that we have this very strict statutory procedure as far as what the district judge is supposed to do to obtain a waiver because typically you're not going to have a record that the opponent can rely on to say look here here you know that the defendant did not understand this or did not understand that the criminal defendants are told sit there behave do not engage in outburst do not interject yourself your attorney will do the talking able to communicate so in parenting they found it easier so i do think you have better issues well then i'd like to proceed to the third issue which involves the admission exhibit three fifty one exhibit as its principal circumstantial piece of evidence that mr mehmood had engaged in obstruction of justice by secrete in portions of the drake file during the visit with his this ability is very broad and our position is that evidence rule one zero zero three applies that deals with a duplicate of a riginal zz and we submit that there's a heightened standard of proof here and we believe that both of the rule says that if a genuine issue is raised about authenticity the government has the obligation to establish the chain of custody  e defense and there was testimony in the case agents agreed that there is a valid reason to have more than one copy of a patient file because medicare ok jli will request additional documentation to support a claim and the provider will keep what he had was the exact things that were missing the office there were well that's it that's the government circumstantial case they said well we we've got this scanned copy of the file this is the scanning was done prior to mr moods visit to look at the evidence and if you pieced together the pages that were found in his cell and the pages that remained at the h s s office there's a match and the circumstantial evidence was important to the government because the case agents testified that they did not observe him take anything and mr mood called to his two attorneys at that time would he have gotten the exact documents  that were taken from the office and the fact that they're exactly this is i think this is a pretty strong piece of evidence and well that's that is the government's  circumstantial case but it all hinged on the authenticity of exhibit three fifty one which they claim is an exact duplicate of the file that they had scanned before his visit so it's a multi it's there's a building blocks here and if we take away the foundation which we believe is exhibit three fifty one then the circumstantial case falls apart or certainly is not at least  as persuasive to the jury and the judge told the government will just a just a call an agent who can say yeah i saw the scanning being done and that will be sufficient to the government s that there was a lack of foundation or were you arguing that the exhibit is not trustworthy because there's a difference in the two the t i'm just i'm not sure what the argument is i make in both arguments under issue three we are attacking the admission of the exhibit under issue to be which is a sufficiency argument we're a situation in the united states is would i believe he's a permanent resident and what happens if yours is conviction is  farmed what is his deportations towse well he gets a little complicated i'm not an immigration lawyer but there's a distinction between offenses that per se result in deportation and then crimes of moral t which where there is some discretion on the part of the immigration authorities i guess is that anything we should be concerned about but there have been some cases recently in the supreme court there's there's been several decisions from this court that have attempted to walk the fine line in separating true money long green as a separate offense versus money laundering type activity that occurs during the course of a crime involving froch because by definition fraudulent crimes involve deception concealment and we would submit that even if everything that the government says is true they have not proved the money laundering counts or conspiracy would have been the part of the transaction where after the money goes to these fo corporations it goes to the these other two corporations for and then some of that went into your client's pocket like these these checks that after the front after the whole medicaid fraud was was completed the money that was paid to these extra corporations well were right in the money went from the home health agencies to the rehabilitation companies and then money the checks were cashed to pay the so called marketers or recruiters of clients but some of it also just went to your client but i don't think that there was any proof of that i thought there was like a five thousand dollars check that just went to him but within weeks we still don't know y counsel for the appellant is going to address ok i don't i think there's a lot of overlap but ok i would just say that the the figures were just pulled out of thin air they just take the gross amount of billions and well the entire business was fraudulent and therefore that's the amount of loss and i would point to court to the follower case from the same eastern district of michigan which clearly requires the government to distinguish between legitimate and illegitimate illegitimate donnie was charged and convicted with two counts in this in this case one was health care fraud conspiracy in the other was conspiracy to pay and receive health care kickbacks now at various times the court in the prosecution used different numbers as far as the amount of loss attributable to my client at one point actually during sentencing the court used a number of forty four million eight hundred eighty one thousand five hundred forty two dollars and thirteen cents the judgment of conviction had the number thirty eight million one hundred fifty thousand one hundred thirteen dollars and sixty four cents and there was a forfeiture number that the  attorney used of around thirty two million dollars so there's a twelve million dollars spread between a number that the court used at the tail end of sentencing a number that was used in the forfeiture number and then the number that was on the judgment was somewhere in the middle these numbers were pulled out of thin air with respect to both defendants but with respect to my client it's clear there's no basis to come up with that number now i'm going to talk about a company called hands on healing that was the home health care company that was part owned by my client for a period of about a year and a half as the evidence showed at trial it was from two thousand and seven when a hands on healing got its medicare provider number and therefore was able to commit medicare fraud and august two thousand and eight when mr ahmed donny sold his share of the company to mr mahmood for about sixty thousand dollars i believe was that was a sale price at the present evidence because there's no evidence of my client's involvement in business with mr mahmood or any other  alleged conspirator or any other conduct that could be deemed a conspiracy to commit health care fraud after august of two thousand and eight the only thing that was ever even mentioned by the government on that point was a check i believe four thousand dollars alone i believe in two thousand and nine from one of the companies to mr obama donnie's wife because at the time he needed money to take a trip  there was no evidence of mistrust madani being involved in anything and he didn't do any physical therapy did nothing after list of two thousand and eight absolutely not there was never any evidence of that presented at trial nor was there any evidence of that presented at sentencing so after august two thousand and eight it's clear to me that mr obama dani was not involved in anything that could be termed health care fraud but in the sentencing hearing itself the it was i think clear to the court here's what the judge says sentencing on page ninety one of the sentencing transcript which is about eleven pages from the end after the judge heard everything that the judge wanted to hear a sentencing g s and this is in response to mr why don't you make an argument on behalf of himself she says your lawyer has argued i think very effectively that you were not the mastermind of the scheme but that despite getting so little out of this you continued in it for a great deal of time until at least a way and i don't know exactly what happened in zero eight at this point so at the end of the sentencing hearing the judge is saying i don't know what happened in a way so clearly there was no finding not a finding by preponderance of the evidence as it was the government's burden that my client contributed in any way to any loss after august of two thousand and eight now hands on healing build medicare from its inception until mr mahmood  arrested in july of two thousand and eleven six million seven hundred twenty three thousand eight hundred twenty eight dollars that was the totality of the billing not we don't know at this point his facts were not developed at trial or at sentencing as the how much was build that my client could have possibly contributed to but i'll submit to the court that it's got to be just doing basic math less than two million dollars and that's going to make a significant impact on what the and sentence becomes if my client is recent unst now he was convicted of two counts one is the health care fraud completely sentenced wait below the guidelines the guidelines were there was a ten year maximum on the health care fraud conspiracy my client got eight years so he got eight years concurrent with the maximum that he got on the kickback count which he got five years on that now a little in the kickback county there wasn't anything said a sentencing about that it was just assumed that he should get the max on the kickback count there wasn't anything relating to how much he would have received in kickbacks anything relating to the amount of loss generated by the kickback activity none of it so i believe he should be resentenced as to both counts the health care fraud conspiracy and the kickback count and did you did you objected scenting to him i was not the the lower court is called his lawyer oh he was he represented himself no he had a court appointed attorney one of my last arguments is an effective argument but with respect to the issue of sentencing there was a lot of discussion relating to the amount of loss and there was an objection filed relating to the amount of loss at sentencing and you know that their goods into the analysis of the cases that the clerk relied upon at sentencing surrounding the issue of whether there was a withdrawal from the conspiracy by my i'm arguing and whether it was what the court termed as mere cessation of activity and i think in the context of the facts of those killed it's based upon the case law that we've cited in the brief which the government doesn't respond to in any way  is that my client withdrew from the conspiracy because the instrumentality of committing the fraud that is the ownership and participation in a home health care business stopped there is no evidence that it continued after august of two thousand and eight there was no allegation that the the transfer i mean to fail but with less than an arm's length from fiction no no i mean there was a sale of the business my client got out of the home that case argued withdrawal in the court of the second circuit agree that there was a withdraw when he closed his account at the investment firm that was used to perpetrate the fraud they said that is withdraw from the conspiracy all liability gets cut off at that point the in lash the court said that the defendant in that case of there was arguing withdrawal continued acquiescence with the conspiracy after the a point of the alleged withdraw from conspiracy there are no facts to indicate that in this case so based upon that i think if you find that after august two thousand and eight there was a withdraw from conspiracy that for sure cuts off my client's liability for any losses after august two thousand and eight but just over all the amount say about that this again goes into a little bit of the ineffective argument that that i made the  linder for my client in the lower court didn't cite to either nerlens or or less there was discussion about cases which i find in applicable which which i analyzed in my brief case called the tablet case called mahmoud no relation but the lawyer said my client was involvement stopped in august of two thousand and eight are not very clearly very clearly and how did the judge respond to that the judge said that's mere cessation of activity that doesn't qualify as withdraw ok and under case law this just in correct that was clearly erroneous it isn't there some requirement anyway that she find that your client had some knowledge and should have anticipated or had reason to be i mean there are criteria that you have to apply to a codefendant before you can charge a codefendant with all the losses caused by the other codefendant right morning honors my name is dan hurley and there are present the united states and their point the standards in one b one point three of the guidelines it says we are responsible for the actions of a codefendant or a coconspirator if it is within the scope of the jointly undertaken activity that's a standard of the guidelines that's the standard that is to court applied here what was the scope of the join the undertaken activity it's a false premise to say that mr  was limited to his ownership of hands on healing the testimony showed that everything they did was fraud that the fraud was well underway before hands on healing received the medicare provider number the medicare provider number itself was pictured by fraud because toss eve rahman and others testified that they were having recruiters bring in patients and as soon as you're paying for a patient everything that happens downstream from that in terms of submitting it to medicare is fraudulent what was the what was his participation or his activities after august of two thousand and eight there's because the cooperators that the government was able to convince to testify for the government were only there prior to that period there's no testimony from anyone in the scheme after that date so they just record is faced with overwhelming evidence that everything they did was fraudulent they bought the patients they paid the doctors illegal the doctors didn't really see it or examine the patients you know what what evidence i mean  post two thousand and eight because the selling of the business is a red herring because his liability is not as the owner of the bill of the practice his liability is there's testimony he was getting cash to pay for the patients he admitted to the agent that they paid for patients the claims were fabricated his name was on many of the fabricated patients if you have really confused and you have no evidence from two thousand eight to the time that you raided the office bills were submitted so we have evidence that payments from medicare were going to this conglomeration of companies i'm adanis involvement was not limited to hands on healing he was also involved the records showed that the majority of his billings went through the patient care home care company which was mainly one of many routes primary vehicles for fraud the evidence also showed that patients were handed off as part of the scheme that they talked about they were handing patients from one company to another the company's all had interrelated payments from medicare through this nest of companies is faced with a situation where no cooperator after two thousand and eight was able to say i'm a danny did this man who did that but aren't certain things signed by him we don't have anything in the record that shows that he signed something at a particular face with everything they did was dishonest they admitted that it was dishonest in terms of buying patients pain doctors fabricating charts etc before this in total that there is there's no reimbursement from blue cross there's no testimony that a patient came in without being paid to command there's no testimony that any doctor and for legitimately value rest i'm only ok there's testimony from people who say that i mean i some of these visits there was actual services provided to people who needed it those that testimony there is a little of that ok and then there's also your expert testimony that ninety percent was project and that was that was a rough honor if you paid for the patient or if you pay the doctor or if the doctor doesn't issue the certification requiring that you needed home based care and if the doctor doesn't exercise legitimate medical judgment that you need the physical therapy whether you got physical therapy and that's a very very very small slice with no numbers put to that that's irrelevant because medicare says if you pay for patients we're not willing to pay for that even if you provide the best care in the world the patient was obtained in violation of the regulations that's the that's the  and so it doesn't matter unless that patient walked in off the street saw an ad on t v came to them without being paid through recruiters not being paid they were seen by a legitimate doctor not a doctor who signed forms in blank without dates not a doctor who signature was photocopied if that were true then that would be and they would be entitled to an offset and that's that the value of that rough estimate but of that ninety percent some of the other some of the money was actually intercompany there were two witnesses one was i think it was a mob one of the witnesses did say roughly ninety percent but there's nothing to back that up we don't know where those numbers came from but if even if that's true there is such a cushion above the twenty five million dollar cut off that if the district court said ok they built forty four million the everything is fraudulent about this and it's rampant and it's going across multiple companies they're handing patients off everything they touch starts with fraud every step of the way is fraudulent and then the government shows up in two thousand and eleven money is continued to flow to this network of companies and in two thousand and eleven the same some of those same companies are still billing there are still checkbooks seen on the desks of the offices when they executed search warrants and there's a nest of phones that have company names on them that they're running eight or nine businesses all from the same desk but scope of the journey undertaken activity is this network of companies that submits fraudulent bills to medicare you don't know but he was still a part of that network that's right around the discord instead took its guidance from this court case in the tower where the court said for guideline purposes if the scheme is still going on in the laws there is black letter law that it once a conspiracy is under way it is presumed continue unless there's a from an oath noisy withdrawal which is not what happened here with this conspiracy cheesus objectives or its thrust it's frustrated by law enforcement that it ends when someone is arrested that happened on november third of two thousand and eleven and under that principle mr ahmed donnie remains responsible the company he set up was still billing medicare but he didn't own it anymore and there's no we don't know your honor because we didn't at sentencing the parties didn't break down this much came in two thousand and nine this much came in two thousand and ten this month came in two thousand and eleven so that would be something that would have to be investigated  what amounts were attributable to which time period from a mood we think that the evidence is strong that he continued all the way through two thousand and eleven even if he didn't the the way in case makes clear that he gets the guideline of political to the time of his later committed offense and so from a mood none of this makes any difference for both of those reasons you know madonna does i'm sorry so can you walk me through the basis for it mission of what is the exhibit was testimony from agent greasy aca believe it was just one second the objection was made under what rule i don't know if they cited to really run away what i recall the objection was this is really important if they get th proves my client's guilt but there was no detailed analysis of under the rules of evidence they were asking i think they were they wanted foundation they wanted chain of custody they wanted to know that this that purported to be the original stat was really an exact copy of what had been seen straight i don't know what they're i don't want to make  them i don't understand what the objection was because the government said look we seized this but it wasn't what they seized it was right they seized the original records and those are preprinted forms with handwriting on them patient came in on this day i had them do these exercises signed by the patient signed by the physical therapist so those are preprinted forms and various chart items the testimony was that a paralegal came out to detroit and scan and the agent testify it was asked here is a printout that i'm sorry so the testimony where is the testimony so my recollection is that agent crazy act testified and this is going to be in our three twenty two but they talk about seizing what web page you were three i'm sorry nine to zero eight and one two zero nine to talk about what they seized and then they took a break and our three twenty two the agent was was handed the exhibit three fifty one and was asked right what is this you know he recognizes and says yes i recognize that that is he didn't say it this comprehensively but he was in effect he says he it's the pain it's her patient file right and when the medical search warrants it's a printout of what we scanned from what we see east at the time of the search which had been in government custody until the date that mr may mood came to look at the records in time there was no genuine question  scanned copy had been produced to the defense before me move came to the office one of my moods attorneys john minix specifically asked is this the one that we got on i think it was may twenty third of twenty fourteen and so on not sure what you got but a fair reading of that is that the defense knew they got the scanned copy of the original records mehmood gets access to the original records the agents look at them as they put them back on the shelves or that the next day and they notice the for the part of the file that had caused them to scan in the first place not all the records were scant only only some of them this was primary among them because it had the d m in patient files because it had the note saying we need to change this we need to doctor op records generate the paperwork that makes it look like we knew she was admitted to the hospital and then generate the r o c which is a resumption of care which is a form that would be used when the patient would get out of the hospital so there's a note on the file that says the dates don't work that's exactly why they copied it that's how the agent could recognise when he looks at three fifty one that's in the front is those very papers and those papers have great significance to him as an agent for sale and then they look for them they're no longer in the file so they look in the cell and lo and behold original paper files not copies not photocopies the original papers that were in the preprinted forms with the handwriting on them saying i saw her on this date they were in a mood so irrespective of three fifty one if there never been scanned copy under the jacksonville virgin your standard there's more than ample evidence to infer that mood took that if an agent says this file had that piece of paper at the front of it and then move leaves and it's not at the front of it and they go to mahmoud sauer the next day and there it is a reasonable jury could absolutely find that may move slowly particularly when you think about how incriminating those particular pages were in addition my mood had other patient files he didn't have a volume of files he didn't have complete original records but he had a few original pages from medical charts and every original page he had from the medical chart corresponded to a file that he had reviewed at the offices that reason why inference is the papers in his cell came from the charity review that's all the government asked the jury to find that certainly sufficient under the jackson standard with respect to three fifty one we think it was properly admitted but even look at art didn't they argue that we want to know who scanned it because we don't believe that this was originally missing well i mean we don't think this was originally there in the never went that far yet they did say we want to know who scanned it but and obviously i'm not saying that would have been helpful to have had that person but the question at this stage is need that person to testify and this court has many cases suggesting that for chain of custody there can even be holes in the chain of custody that can be gaps but there's no question we seized the originals he access to the originals and a part of it was missing he knew what the agents knew what his lawyers knew it and there's no genuine question today i heard there were multiple originals that there were multiple preprinted forms with pen and ink that the jury could accept it for what the government was representing it to be and that's a low standard it's not a it's not reasonable doubt it's not even a preponderance damages or a basis that the jury could accept it and based on the test of the agent ha district court most in order to permit them to go forward that's correct and the dischord did did make them find this court said i accept it and we still haven't heard it's kind of a moving target here were their tour originals was this not part of it did he have it i don't know what their theory is the the rule of all copies only comes into play if there's a genuine question and i don't know what the genuine question is that agents had seen the pages that say fix the chop that's how they knew was missing for us on appeal about this whether the district court's buying beyond a reasonable briefly regarding abuse of discretion the judge said i'll be satisfied if the agent says that he witnessed the file being scammed therefore you would have to bring in the paralegal if you get that testimony but the government didn't do it and so the district judge made a ruling that was contrary to the foundation that she expected from the government and if there's no what there was no message dr this it was fix this which is shorthand language that is just as consistent with ok let's correct this bill in the medicare has rejected it one final point i'd like to make is this the indictment the health care fraud conspiracy alleges that the offense occurred between two thousand and six two thousand and eleven the government called for cooperating defendants who all left in either two thousand and seven or two thousand and eight so that leaves at least a three year time gap but the defense covered that time period the time period that the government did not covered the defense called seven witnesses who were never cross examined regarding their honesty  his convictions he's not responsible for this gross amount of buildings as lost because much of that loss has not been proved to be rooted in illegitimate claims thank just really briefly on the issue of how much of the home health care businesses were fraudulent the government had a star witness who is like the michael jordan of cooperating witnesses in health care fraud i mean he's testified in so many trials prolifically to the point where i said i read a sentencing memorandum that the government filed on his behalf and gushing is an understatement and even mr ron testified at trial that eighty percent he estimated of what went on in these companies was fraudulent it is say all of it was so even in the government's best light we're talking about eighty percent so the number can't be the pearls amount now the government talked about a conglomeration of companies there were fourteen home health care businesses i think the evidence showed that mr mahmood had had a handed as part of this alleged fraud my client was only ever involved in hands on healing that was a one company whatever went on and these other companies he didn't have anything to do with it i think that's further bolstered by the government's argument that there was this handing off of businesses or or or files but between businesses my client had nothing to do with that his signature did not appear anywhere there was no evidence that he even knew what was going on in thirteen other companies that contributed to this thirty four million dollar alleged loss i want to talk real briefly about the issue of severance  now i detail it in my brief but my client could never i think get a fair trial in this case without a severance between him and that's not what  asked for that's not what he asked for he asked for a severance of a count which at that plays into my ineffective assistance argument that clearly the disparity in conduct that was alleged in this case is so of the timing of how i ended up getting involved in this side you know i was unable to file a motion or anything like that i got involved in this case after the court appointed lawyer had filed a claim