and the clientele being from the cuban or cuban american community and the case was very clear particularly bowman where the court has specifically said that the you know the government's role is not just to obtain a a verdict but rather also to make sure that any sure that justice is done and not inject racial comments or earth necessity into a trial putting these comments into context this trial was done in palm beach it wasn't done in miami where there's a more diverse community but rather was on a palm beach both defendants were were cuban heritage as well as their lawyers as were their lawyers welfare their lawyers were cuban american lawyers as well mr want to see you know myself are cuban americans well so in that context with these comments being made not only was that attack on the defendants themselves but also an attack on the lawyers and their ability to reform and gain credibility with this jury let me ask you this question now the attorneys could have asked the court for a curative instruction to the jury ladies and gentlemen of the jury right and race and ethnicity plays i was in that position and i specifically said i didn't want one and i was asked to to think about it or i specifically are about it and no race or ethnicity an attack on that type of situation in it's particularly in a community that's not as familiar with it it's really a trigger it's really a trigger once the trigger is pulled it strikes a chord and just repeating it or saying it in those individuals that already have a predisposition it's not going to help it's just going to ring a reiterate there's a lot of lot of errors that happen in trial work evidence re matters you can get that kind of instruction a jury or general we go along with it but something that is a trigger of emotion of deep seated prejudice against specifically that you're objecting to  the if i can go into the line because it kind of clarifies the line of questioning specifically the question by the the the prosecution going into and did you find people from specific part of the community to participate in these crimes this is the questioning of a convicted felon who had been charged went to trial this this is the guy who was running up the client yes judge it was he that was he the first witness as to whom these questions were put it was right i think it was one of the first witnesses you know one of the one of the things one of the issue first the rise and what was your objection the issue first arises right at the beginning when he first takes the stand pretty early on first to go into his background so it's someone who went to trial the government doesn't really trust him so you know that they met with him prepare him i knew the answer is what i'm driving at is when did the issue first arise i assume it was with the first witness yes judge a rise right away with this first witness l k rise would and what was the objection first made the first was right away it goes immediately samant want to see no said objection and of course as basis and she is implicating an entire ethnic group and then the prosecutor replies i'm not  then the course is why don't you try to rephrase the question and then the next question are you familiar with the cuban people here in palm beach and they says yes what percentage of the clientele for these accents were cuban community ninety eight and then it goes into and she asked generally do the do they do the cuban community do they know each other and he answers not everybody knows each other because it's like what do you think like all cubans hang out together what is the objection lodged and what did the court add objection was there then this line of question then i lodge the next objection which says objection and the court says just one moment then i then i said like a foundation trying to figure out where is this going if you're not attacking the of group of people what is the foundation for this and then she she goes and establishes whether or not he knows the answer to the question and frankly then that after that the line of questioning continues and he goes well because cubans all like  did you ask for a sidebar with the court that to find out how far was this going to go and and for a caution or instruction frankly no i did not believe this was going to happen because when once she said no i'm not going there i'm not attacking any specific it was  following up there the wood you're objecting to was the answer not the question because the witness said because cubans are always looking for money yes in looking for the easiest way to get money now that was not a question that was an answer that was the answer which and then you had to sidebar with the judge and you decided that you did not want curative instruction to that to that's there's nothing i could do exactly and with that was an answer the prosecutor did not ask him a question of whether the cubans were looking for money she simply asked a question was there any reason why ninety eight percent of your clientele comes from the cuban community and i believe any of the answer and when i answer it was the answer b because they speak spanish  wouldn't answer be because they feel more comfortable with was someone who spoke spanish that if you're if you if they don't prepare their witnesses which i don't believe for a second then prepare this convicted felon who went to trial and lost and you every answer to every question they're going to ask i could buy that but no they had to know the answer they knew what the answer was going to be and it was clear it was it was and there was nothing to do to fix that response and what occurred it was a complete shock because the initial representation was i'm not doing this i'm not going there and then well with the fact that the clientele was ninety percent cuban would that be relevant to the case no why would it be relevant well i'm asking you know what does it have to do with anything and that only men think that was shown and i don't think it was shown that they were actually cuban but rather some of them or as is argued in the opening statement or in the closing statement by the they're ninety eight percent of the clientele spoke spanish basically i would but think most of most of those claims about spanish that went to the clinic was argued in the closing i don't believe that was argued in the closing but again the throughout the trial there was a tenor and tone once this shifted i mean it just became almost like a centerpiece of the trial there's nothing you can do to fix this thing there's these two cuban lawyers and i think they're understaffed you've save it please the court your honor the issue that i'm going to address concerns the district courts him proper methodology in calculating the loss amount in this case  effectively what the district court did was basically take the total amount of money that was either billed to the various insurance companies as an intended loss or the money that was paid by the insurance companies to the clinic as an actual loss and then took the position that every dime that went into the envy was essentially the product of a fraud the the district court's approach was premised on an irrelevant and collateral state court statute that concerned the appropriate licensing or non licensing of health care clinics you have to in order to prevail on appeal don't you have to convince us that the factual findings by this record are clearly erroneous yes your honor and so what factual findings can we  say are clearly erroneous that's pretty heavy standard of review factual findings well first of all your honor the factual findings are reviewed for clear error but then there's also there's plenty review and legal determinations and i think that the court's ultimate decision was based upon a legal determination that the fact that the clinic was not licensed somehow rendered every claim that was submitted fraudulent within the meaning of the the mail fraud statue of the great had to make an estimate because you couldn't tell which ones were and which ones work no no  my our position was we have to go ahead and get away from a blanket assumption that every claim that was submitted was fraudulent and in that regard what we did court say that every claim submitted was fraudulent yes honor and what we did in this sentence even submissions and it's a documentary one forty three attachment a there was a four page submission that was attached to the because  sentencing objections that set forth a list of all individual patients whom the because contended legitimately received chiropractor and massage services or therapies purely a strict liability regulatory statue and if i can if i can draw an analogy i think that this court may think of the case i think it might have been united states versus medina which was a health care fraud and government kickback and when it came up on appeal one of the sentencing issues was whether the court made an appropriate blanket determination that all amount spilled or all amounts received was the appropriate loss figure and medina was a a kickback case and you had i think testimony from medicare representative in medina that said well had medicare known that the kickbacks were being paid we would not have paid a single claim that was submitted and that's similar to this situation because the florida statute said an unlicensed clinics claim is not comp but that the panel in medina held that that no this is got to go back and we have to make an individual determination as to what claims were fraudulent and which claims were not and the issue of the claims were represented to have been on the services provided by a chiropractor all the claims are under the supervision of a chiropractor actually around of the well they not all the claims are represented on what's called the fifteen hundred form i understand but it wasn't the representation to the insurance carriers that all of the services that were performed or either performed black chiropractor under the chiropractors supervision or a licensed massage therapist asked yeah exactly at the end as opposed to a taxi driver doing it right and what happened around or there was some there was some proof a trial that was elicited that there were some false claims that were submitted on the fifteen hundred form the fifteen hundred form does not require or does not suggest and there's no representation that the clinic itself is appropriately license as a matter of fact no no no it is a representation that the service was the limited time that that adams was present that was so was that not the case dr adams was present over an extended period of time or one day a week was it as a four hours a day or so or one but for one day a week for four hours a day  but the but a licensed massage therapist can submit the claims the licensed massage therapists can go ahead and provide the appropriate treatment or the doctor's supervision yes and they were and there were other there were other chiropractors w also employed by b and b and that the record is clear on that as well and what we have here is that at the at the time of sentencing the defense did submit a list of all individual claims that were submitted that were medically necessary treatments and were actually provided and the government never contested that and the court your ruled just ruled out of order in effect because they weren't life that's the gist of your argument yes ok well that is a factual finding then not a legal finding that is the dig the co individuals who had the appropriate licenses but but but in a scheme in which those who own and operated did not have a license judge was a higher the higher license individuals scheme yes as defined in the indictment and the scheme as represented by the government in both prior to trial and during its closing arguments focused on the submission of the false fifteen hundred forms they never alleged in the indictment that the fraud involved a representation that the clinic was appropriately licensed the indictment charges and the object of the conspiracy and also in the scheme to good morning may please the court jason wu in behalf of the united states with me at counsel table is ellen cohen who tried the case i'm going to turn straight to the two arguments that they discussed today and they are in their time i'll start with the trial error point about the single answer about cubans and then move on to the last amount unless you would prefer a different order so i think on the first issue once we have the record clear once we clarify certain points of the record i think the answer follows very quickly so let's go through some of these are actions made today and then look at the record the first desertion is that this was an invitation to the jury to convict the vehicles on the basis of their nationality the reason that's not possible and it's not true first of all is that the jury did not know that he goes nationality no witness identified the as cuban none of the counsel referred to them as cuban in the presence of the jury which wouldn't be evidence in any event and so that that takes care of the claim in and of itself moreover however in response to one of the questions that judge show flat ra think it's important to look at the context in which this answer came about judge joe flight you asked when did the issue first arise issue arose because defense counsel in cross examination of an earlier witness dr adams specifically asked where the people coming to this clinic where they have all nationalities are what were they and dr adams replied that she believed they were mostly cuban or almost entirely cuban they left that hanging out there and so with the a lot later witness the government attempted to well that's not what they're the basis for their objection now correct the fact that all of the clients were cubans ok what they're objecting to is the answer that was given by mr ramirez because cubans are always looking for money they're looking for the easiest way to get money now what does that have to do with the case so i think it's important to realize that's not the question that was asked of him directly and that was not the answer the government intended to elicit the government didn't know what their star witness was going to say when they asked him that question when they put him on the witness stand it was a surprise answer to the government there's no doubt about that well when i look at this colloquy it doesn't reflect that because there's a long colloquy by the government before we even get to that answer sure but i think the government pressed it until it got this answer and then it moved on and the i think the way you can tell that's not the answer the government intended to elicit is by looking at opening argument where the government said it's the area of the case was that that this operation targeted spanish speakers because it wanted people who would not be able to read this treatment forms who had signed these blank forms was actually giving blank checks to the envy well that's not the answer the witness gave this because i'm cuban in these cuban clients are more comfortable with me that's not the answer you gave the answer they gave us because cubans are always looking for money they're looking for the easiest way to get money that was otherwise the government didn't know he was going to answer the question that way their star witness well i think i have to realize when you have a cooperator you meet with them a few times b don't you are necessarily able to cover all of your questions in detail i would also point out this was never asked of any other way the case in the government could have stopped earlier rather than pro the witness and continue with the colloquy impressed the with this until he got this answer well into the pressing is not saying that there was no hinting or leading in the question as to that would elicit this particular answer it was just why were they cuban the answer could have then they were spanish speakers the answer could have been because i recruited people i knew were acquaintances of acquaintances and they happened to mostly be cuban again this came about because there was an earlier answer and there was a concern that the the defense might use this as a as some sort of defense theory and in response that you want to tie it off you want to dispel any notion that this had relevance to the case by asking your own witness and getting an innocuous answer unfortunately that's not what happened but also point out no other witness was asked this question and the government never sought to repeat this point either with a witness or a closing argument so i think that further establishes that wasn't the government's intent and the government didn't try this case on the basis of nationality in additional point out i think it's worth looking at the bowman case which was cited by appellants here today and also in their briefs because i think it's instructive on this issue in boma and there was a single exhibit with a racially inflammatory line it was not stricken and the appellate court this court concluded that it probably better would have been stricken nonetheless bowman referred to it the case referred to that as but a brief flicker in a three week trial with overwhelming evidence of guilt that's exactly what we have here an answer came in we don't dispute that the content of the answer itself was inappropriate but it was not  trial when the jury factors in this city and in reaching its verdict are correct but let me make i think two important points the first is as the supreme court has said and as this court has said defendants are not entitled to perfect trials because there are no perfect trials they're entitled to fair trials so in this regard first of all the reason the only reason this answer remains in the record is because defense counsel specifically refused the invitation to strike it and take the carrot of but secondly i think that the clear statement of the rule in this area actually comes from the seventh circuit case the farley again cited by the appellants in their brief and that states a quote exactly one or two isolated references to race or ethnicity wholly unlikely to sway a jury do not compel a new trial on federal constitutional grounds when the defendant's guilt is established by overwhelming evidence or we're not in the service or the circuit well i think it's consistent as i said with this court's decision in bowman where there was a single racially inflammatory line in an exhibit the court looked at it and that in the light in light of a three week trial where there's overwhelming evidence of guilt this is but a brief flicker that's exactly what we had here the witness gave an answer that we don't dispute is inappropriate but is not the answer intentional is that we did not reference it in closing argument or suggest that it bolstered any evidence of guilt the defendant's own ethnicity or nationality was not before the jury because no one knew they were cuban and the errors harm even if there was an error was harmless correct some suggesting first of all there's no error there was to give good for a curative destruction after that was a correct correct after this answer came about at the close of that trial day there was a sidebar discussion with the judge the judge urged counsel do you want me to strike it and give you a curative counsel specifically as they conceded today said no the judge even asked them think about it overnight i'm willing to correct this tomorrow morning if you think that's better move they never came back and then move or mistrial correct that's why we're not arguing plane error or invited error we recognize they have checked and asked for the mistrial but nonetheless i think that informs both the harmless error analysis and your consideration of whether there was error at  all also note there are a few side points which i think are important to address the first is that defense counsel suggested today an argument that this trial was done in palm beach and that somehow those juries would be more susceptible to an invitation to convict on the basis of race or nationality i think that does discredit to our fellow residents of palm beach but more than that i think if you look at the jury selection this case you'll actually see that as you'd expect of a south florida jury we had a diverse jury that you can look at that it docket entry to twenty one the juries identify the pages to sixty four to sixty five and throughout the record you see there are jurors who are spanish speakers who are in fact able to understand the spanish language witnesses and sometimes raise issues with the judge concerning the quality of the translation so the idea that this is somehow a jury that would be susceptible to this sort of invitation to convict on the basis of nationality i think is disingenuous moreover i think when you look at the totality of the evidence in this case which i'd like to describe briefly there was this case where the defendants ethnicity was not even before the jury or their nationality given that the jury was not even told that the because we're cuban this would be particularly as an odd case to apply such a stringent rule also intentionally elicited by the prosecutor no your honor i disagree with that for one thing they have not raised any claim a particular illness and find out what i'm saying is i think you missed the point i apologize statement i take your point i take your point there's nothing in the record ok even taking it as a blank record and yet if you had it be a different proposition if you have some evidence that this was in the tensional act or i suppose and then it was carried on other correct absolutely correct what about the fact that when you look at the colic with the prosecutor pressed until it got the answer that it wanted again i would stress the prosecutor only pressed to that point where they where she asked an innocuous question she asked well why were the majority of the clients cuban she didn't ask it it's not as if she got multiple innocuous answers she got non responsive answers and so kept asking the question till she was attempting to get a response of answer unfortunately the answer came out that that came out was inappropriate but again i think there's nothing in the record as judge points out to suggest that this was a deliberate attempt by the prosecution to elicit this particular answer and again never return to never referred to in closing argument and only in the record because defense counsel refused curative instruction with my remaining time i'd like to turn briefly to the issue of loss as judge wilson pointed out this issue was reviewed for clear or only here on appeal and so it's important to look at what bases the district court had for its finding a balance of really ignored two of the three primary bases for the district courts finding at the sentencing hearing the entirety of the district findings our docket entry to thirty six eighty to eighty five as we're going over each reason in detail the first one is that the district court which heard all this trial testimony including the massage therapist and employees is that from the first day they worked at the end the y were instructed to falsify or exaggerate claims taking that evidence in its totality the district court found the clinic was set up as a fraud from its very inception it was intended to generate fraudulent claims and so that already provided it ample basis for the finding that all the correct judge relay rayna but that's actually not an accurate description of the indictment in this case if you look at the indictment in this case paragraph twenty nine a of the manner and means describing this conspiracy is specifically said the vico contract it or found a license chiropractic physician to act as the quote unquote named owner of the clinic and more furthermore earlier paragraphs in the indictment in the general allegations which are incorporated into that count reference the licensure requirements of the ownership requirements under florida law so the very clear that the indictment put the defendant on notice of the theory from the very start moreover it was alluded to in the government's opening argument the government referred to this false ownership issue as quote unquote another problem with the clinic in other words another issue another fact that made all of their claims fraudulent so this is not something that they heard for the first time a sentencing the second reason the district court had heard finding was a highly suspicious pattern of payments that it saw in v n these financial records so it alludes to this and  our brief described as briefly but what the forensic accounting analysis found was that there was over one point five million dollars in the envies business accounts that came from insurance companies but no significant amount of cash that would come from patien paying deductibles or co pays the reason that significant is that with these florida the insurance policies the patient is responsible for a very substantial deductible often a thousand dollars and then a twenty percent co pay along the way so in other words for every ten thousand dollars you see of insurance payments there could be two thousand three thousand dollars of payments from the patients there's no evidence of that in the end these financial records and the reason that suspicious is of course when all of your patients are coming in are being paid provided it is it that the claims are several different civil police in the street it's more than that i apologize for interrupting it's more than that so even taking those two reasons putting them to the side there is the straw ownership issue that you alluded to in the record for instance from the insurance investigators one of them from allstate made clear in his testimony these companies will not pay any claims that are generated by a clinic with a straw owner they understand that statute as we understand it to owner clinic is essentially generating non compatible claims right off the bat that's why the entirety of these this loss amount is attributable to the b goes for sentencing purposes and of course for forfeiture if there are no furthe questions we urge the court to affirm the because convictions and their sentences thank you very l in response to the government's argument think they still missed the point of racism and why there is no place for it in our trials rather claiming there for some reason the jury was never told that the vehicles themselves were were cubans  that's a ridiculous argument quite frankly there is no place for racism period in or were that doesn't matter what ethnic group that the person is belongs to is something i agree with that but the question is did it what is the government's role in introducing that hold the government knew the answers the government or to view this person extensive this is a guy that went to trial lost is a highly suspect that individual you're putting on the stand you don't just launch him on the stand and take and play by ear this is a person with  with who is highly dubious an individual that you're going to carry out there on a leash and exactly what they did and if you look at the colloquy there's no conclusion that you can reach other than they wanted that answer it is from the beginning the objections started that the warning was laid and this is where you're going and this is exactly where they went and they got exactly the answer that they wanted because that's what they wanted to do and you can see it even in the if we did tire record which we will yes where else in the record well we find that reference to that there's a there's actually something i'll tell you pinpoint for us off of the record that are tied to that that answer in the government's response and in the record during the testimony of jennifer add on of that can you can you pinpoint can't give you a page number to simple question no i can't can you you can't i can i can tell you i will tell you i know but the flavor is can you pinpoint anywhere and the that the prosecutor drew on that answer and went from there after that no judge but i could tell you that during the testimony and in the government's response of jennifer adams she had previously said that the clients were from all walks question right because we were lying in her report where she said they were from all different walks of life and now the government has somehow this witness is answer is now no they're from the cuban community that shows you what the theme of the trial was and that's what they wanted to pound on and that's exactly what they did this thing happened early on in the trial judge it didn't need to go any further we could have i asked for a mistrial this restart let's not play these games is not interject this type of evidence early on in the trial and set the tenor and tone throughout the trial about racism gyal did testify johnnie all did say he's a cuban it was clear that he's cuban it's clear as well counsel from their surnames release versus vanish origin and it's something that was laid o the prosecutor in her inner closing argument told the jury and this is the quote that is the crux of the case all those treatment forms that went to the insurance companies those are the fifteen hundred forms you look at the indictment and on the substantive counts the mail fraud counts each of the substantive counts is based upon a check that was mailed from an insurance company to v and the based upon a claim that was submitted the claim is the fifteen hundred form so the fraud the act that caused the harm if any was the submission of the claim that bore reference to either services that were not provided provided were not medically necessary and that's the very very essence of the fraud not the fact that there was a florida statute in fact mr pfeifer testified that the fact that a clinic is or is not registered is not something that the insurance company takes into consideration in making an initial determination whether to pay a claim they rely on the fifteen hundred form the fifteen hundred four makes no reference whatsoever to whether or not the the clinic is appropriately licensed now the government has suggested that perhaps the whole scheme was fraudulent as the government has described because of the fact that there was no evidence of a co payment having been made that the fact that a co payment is not made is not in another itself evidence of fraud the court or the law in florida doesn't require that you actually collect a co payment in situations where a co payment may be due it only requires that you make an effort to collect it you send the client the money and you say by the way there's a co payment would appreciate it if you pay it if the person can't pay it well so be it and that's the end of th law poses no yes your question then to see what will be ultimately would have to decide the sentencing judge found by the preponderance of the evidence that all of the proceeds from the clinic would do to freud because the clinics true owners would the defendants and they do have a license now is that clearly erroneous it is it is not clearly if you go ahead you look at the trial transcript it is that is not clearly that statement is not clearly erroneous but what is erroneous is the legal conclusion that because of the fact that the court clinic was not appropriately licensed that it necessarily means that each claim submitted is fraudulent and by analogy i would again call the court's attention to united states counsel i think we have your point here thank you united states