course we know that the jury must have found beyond a reasonable doubt that dr russo knew that the materials in the information he was citing was false did along with multiple directors in they all testified against doctor research who earned more than eight hundred seventy seven thousand dollars for it minutely signing whatever medical documents were put in front of them without review he rarely if ever met with patients or reviewed their medical needs he was a part of a conversation where another employee expressed concern over the quote bones in the closet the evil secrets of the home of health care solutions he was aware that they were recycling patients to increase billings he was involved in conversations with employees where they were instruct the late references to alzheimer's and dementia medications on patients profiles and so your argument is that evidence is insufficient upon which a reasonable  conclude that he was a part of this conspiracy and i have my arguing your honour's of that evidence is a summary that is not exactly faithful to the actual testimony at trial none of this is in the record for example there in the argument that my me to go ahead and delete it every medication referring to those so and i could say the same thing about some of the other premises for example it is true he didn't see patients and that was it had he seen the patients documents that distinguishes when the braille case he signed dozens of documents wouldn't that indicate the knowledge of what was taking place well if he had ever read them or there been any evidence that he read them and unfortunately i'm here to argue  someone who completely abdicated his responsibilities a professional but there's no evidence that he read them that the evidence that he knew that they were false and the mere signing of the documents i submit is is insufficient and  remark about the bones in the business i went back to that again and again because what mr layman says and we have to take him for his word assuming that you know get based on the jury's verdict is that he asked dr  what would happen if dr manley ever learned about the bones in the closet so it's implicit in that remark that doug manley was not told anything about the bones in the closet and there's no discussion about what that means so i understand and judge wilson i'm not arguing that there's a complete and total lack of evidence i don't think that's the standard or the i'm just arguing that in light of the totality of the evidence and the lack of direct evidence you would think after that many years of association with these people that someone would say maybe our man of them solace i told him i'm going to pay you to do this and that they openly the other coconspirators openly discussed the conspiracy nobody did that with my client the larkin case in the circuit the o a high on case in the circuit and the supreme court's decisions in yeager and bravo fernandas make it absolutely clear that the government cannot go and request the pinkerton instruction proceed at least in part on the pinkerton theory and then when they lose all of the counts that everybody believes my client one hundred percent there is no question in a rational jury conclude that the therapist were part of the conspiracy because of the again this is the focus of the case law is a fact specific focus it's not merely a theoretical there could be a case where that's true there could be some other case but in this case as the government's brief reflects where the government uses an argues to this court evidence that my client's failure to respond from a to the lead to deny her involvement in these very notes in the second trial this case was tried on the theory that this was the therapist role the all they had to do was produce these these notes and that that was the that was their function their they had they had to either be signed or somebody had to sign for them and that was their function that was the case there and what we with it but there were other there are other purposes to the conspiracy and how the objectives i mean there for example in addition to the notes there were the allegations of kickbacks there were the allegations of not actually providing fairer pee in the sessions in the group therapy sessions instead showing movies or whatever the case may have been and so how would that is so how how would you respond to that with respect to the acquittals on the substantive counts of first the government overread the larken rehearing decision or going to hearing there there was an affirmative basis for the court to say well the jury has not reached a decision on these substantive acts but has reached decision on the subset of x hence we will say that the government can go back and they cannot proceed in any way on this conspiracy in the manner that is addressed in the acquitted count just the acquitted counsel cells in the manner so that entire even under that theory that that in you what you would be lopping off of this case is the head the arms and the legs of the government's case against this defendant they didn't go back to the second trial and say ok forget about the false notes that was their case in the second trial just give us a case in the first trial it's their case in front of you know and so whatever theoretical possibility that might be from the interpretations are going even assuming that to be the case the instruction that was actually read  there was provided to the jury it seems to me that a reasonable jury likely understood it in its natural meaning which was as so regarding a substantive count meaning the false statements if you have first found a defendant charged in that count guilty of the crime of conspiracy as charged in count one you may also find that defendant guilty of any crime blah blah blah so it seems to me the natural reading of this is that it does set up first finding the defendant charged it first finding the defendant guilty of conspiracy as charged in count one as a precondition for finding liability under the pinkerton instruction on the substantive counts and why would why wouldn't it be that a reasonable jury would understand it that way and not ever get to the substantive count since it missed tried and hung on the how since it hung on the conspiracy count well first i note that the government is no longer relying on the theory because under larkin that theory is no longer by a viable for them to argue unfortunately i was unable to come up with the lark and decision in the district court but it came up on appeal fortunately and so we know that the law is that pinkerton is not treated that way for purposes of the collateral estoppel argument as we have a direct holding by this court that is binding precedent on that issue secondly i think that it would be the one thing in the law it was not a special verdict other than a special verdict nothing in the jury instruction in any case live everson on juries directing streets that treats jury instructions that way and it would it's contrary to it's contrary to the intended law attended purposes pinkerton and it's basically an afterthought that it is assuming that's true that still would not change the law of this circuit and the law the what the instruction instructs like every instruction is directed to each individual sure it doesn't say you can't look at this theory until all eleven other jurors agree agree with you so that while it's a novel idea it runs straight into precedent and i commend the government for giving up on that theory at this  other issues that we were raised are very substantial as well the issue of dismissing a juror with her in a direction of the yes it was certainly by my client and and certainly by by and by mr russo but as the government points out all defendants obj adopted all objections that would be an a an abuse of discretion on the part of the district court it seems to me that you could disagree as a matter of discretion but was it will be abused the abuse is who was who was an african american as was his client the gist of what announces starts court at nine o eight in the morning approximately two or three minutes after that says the jurors fifteen minutes late and she's overslept i told her i've told her i've excuse her period bring in the jury nothing told the jury about it because it's i have reviewed that record from cover to cover more than once nobody was ever late the judge started one day the judge this particular judge has a practice of starting a few minutes early if it sets a case for eight o'clock lawyers know to be there some for you that were you the judge did say though that the juror had been delayed several times and i thought the record i made i may also be incorrect here but i thought the judge said i thought there was evidence in the record that the juror would be forty five minutes late not fifteen minutes late that day so there's there's no about but but here's the point there's nothing that refutes the judge's statement on the record that the juror had been late for the re you're saying just looking at the record it looks like that that jury that the juror wasn't late but there's nothing there's no objection or anything on the record or any correction there's nothing like that there is this tremendous it says that he says that's  is he prejudiced he just argued his case to two to one of the few remaining african american sure he's got an african american juror i mean i would feel prejudiced personally i would feel very prejudiced but the other defendants are all minority minority group members it's it's there's prejudice to it the point about it though is this court said in its own bad decision you don't go there you don't look to and the supreme court says you don't look to prejudice been white male would is that the distinguishing characteristic here that he was replaced by a non minority jurors is simply a question of exercise of discretion and tiredness i'm i'm simply responding to that if the law were the case you had to show that i really needed that particular jury we can show that in this case we don't have to show that in the law the law is that you know you can't just say a juror a juror is a few minutes late i kicked her off you can't i'm sorry that's an abuse of discretion and to do it again as a matter the race issue doesn't matter here it matters if you're looking for prejudice but you don't look for prejudice if you're looking for prejudice we join in the point is it's doesn't have to be prejudice the supreme court said it we cited that case the davis case we cited the other cases we cited it says you have to this is not a little thing we're somebody phone and we could immediately address the matter but the judge had already ruled without even giving it the juror that the defense a chance and at the time he ruled had excluded her it was sometime before nine zero eight with court starting at nine o'clock in the morning so we don't defendant ms crabtree did not make a materially false statement in connection with the delivery of the health care benefits would have acquitted ms crabtree of the conspiracy of the delivery of health care benefits  was a substantive counts the counts six and seven were it in extra completely intertwined with this conspiracy to respond to judge rosenbaum's comment about there was evidence regarding other activity going on movies things that were not related to therapies that is exactly what these therapy notes were tied in to the fact that there were other activities going on yet these paying notes in particular concerts and seven were saying that these people were giving statements as if they were truly giving therapy being receiving therapy and acknowledging that their therapy was working and talking about how their therapy was working the pinkerton instruction requires one element that is to find that these defendants were part of this defend it was part of a conspiracy and then these statements were made by the defendant or by others this jury acquitted the fanon of the substance of offense under those instructions and the element a a an element of that instruction was the conspiracy to say that the core of the jury was hung on count one therefore the jury must not have considered that is a violation of the supreme court's case in yeager which says you cannot interpret a hung count in deciding what the jury decided with regard to other counts in connection with collateral estoppel so it was err by the court below to say yegor i mean to violation of jaeger to say well because they were hung therefore there's no way they would have considered the pinkerton instruction the in court instructs them they must consider it that's what the law of the circuit is and they obviously did consider it because this these notes were completely intertwined that's what the government hammered away at they said the therapist were part of the assembly line and their role was to dr clone they used the clone repeatedly and they are real and final argument that they clone those notes and that that was what the therapist that that's the exclusive thing that the therapist did in that trial thank you ladies thank you your honors unless the court has any questions i'll settle one question dean dykeman specific notes that were at issue would you will take that now to be all of the knows where and whether or not they have been charged in the indictment well as a matter of fact in the first trial the government offered not just the two notes that were subject of concerts and seven but an additional set of notes from pertaining to that patient and in those additional set of notes were cloned notes in other words where they would say the repeated same things time after time after time i cited that in the reply brief and there's a footnote i listed all of those so they went further in the first trial not limiting just to do those two counts but to many other notes from that therapist in the second trial they went back and even had agent rivera talk about how miss crabtree had made a false statement when she was questioned about those very sa the very same notes that were the subject of the first trial that was an additional reason why there was a double jeopardy problems with the second trial thank you were from mr pierce mr webb i'm sorry i want to address judge rosemont concern about the jury instruction in the first trial your honor my response to the question you previously asked is there is no or required order that the jury has to consider count one and thence go to count to eleven the pinkerton instruction is not optional a natural reading of the jury instructions could be that the jurors looked at for my right my client was house ten eleven they looked at those notes in a vacuum they didn't consider count one they fully read pinkerton and when they redid they did they determined to go through the steps of liability was she member of the conspiracy that she act in furtherance somebody acting further into the conspiracy and was that act forseeable those that's a natural reading that the jury considered fully those three elements and determine they rejected those and that's and when you read then another not that's another natural reading of the jury instructions and also as the counsel just said the court cannot look at the fact that is we're talking about what the jury instructions mean so we're not talking about what the actual outcome of the other trial was the problem is in looking at what the jury instructions mean if the jury instructions are written in such a way that the jury understands them reasonably to mean they stop at the point where it says if you have first found conspiracy because they haven't found that i mean that to me seems different than looking at what the meaning of and trying to read the tea leaves on what the meaning of a hung jury on the conspiracy count i really honor that could be one possible reading of it but in this case i think there's two reasons it doesn't explicitly say if you don't find a conspiracy count one then disregard all further pinkerton instructions when considering counts ten eleven there's just a if you don't find a argument is that if there is to natural readings it should the courts of the dop the natural reading that sides with defend it because it was the government who asked for one hundred ten originally and i and i i might i might agree with you but i guess i'm not understanding the second natural reading that you're talking about so if you want to maybe you'd just went ok in the first trial when it gives the pinkerton instruction if you find the defendant guilty of a conspiracy in column one you may also consider their liability the back of the jury room so they could look at counts to eleven or they could have agreed on all sorts of things and s b what a rational jury and i think if we start guessing we start looking at the hung count i think i think ten eleven have to be viewed there's no required order they could've started with ten eleven or the other subs and counseling got the conspiracy last and they could have fully considered pinkerton and i think with a look at why the government requested pinkerton in the first place they requested it because my client's defenses as the other therapist was yes those notes were fraud but i didn't do that there was wrong but we didn't do so the government the counter that said well you didn't do it but you know that they asked for the pinkard instruction so my argument is also the did the government ask for the pinkard instruction they can't you know they can say well figured in doesn't apply or it's thrown out the window it's there it's just the same is charging conspiracy once again in ten eleven so i see amount of time and i think you do so mixed and you are turning cricketer in his head that is according to the instruction if you first found it defended guilty of conspiracy then you could find him guilty even though they didn't participate in the crime seems to me would you are now arguing it's the reverse if they didn't participate in a the instruction as they can be it was the jurors that are the law presumes that they will follow the instructions fully it doesn't presume well they're going to toss out pinkerton so my my argument just that when they considered council a subset of counts they fully went through a pinker instruction as they were instructed to and the governments are going well you that is they could have done that because they found on the hung count no conspiracy but the argument to that is that they're not we're allowed to consider what take any inference from  a court james pierce united states i'd like to take the organ arguments in the order that the defendants made them unless of course the court wants to go elsewhere briefly on defendant research shows sufficiency arguments judge wilson recited a number of the facts and which we realize here his continual signing of the documents without paying any attention to them the recruiting trip to north carolina when the bones in the closet comment the direction of the therapist assigned to conceal the fact doctor so as it i'd like to turn to the collateral stoppel issue is i think that's the one on which the court spent the most time were you before you leave the sufficiency of the evidence issue with regard to the understanding correct that move there was benefit financially from the conspiracy one dollar no that's that's not the government's understanding at all i mean the the therapists were receiving the funds and as a result of their participation i mean they were drawing a salary they were not getting extra dollars but their involvement in the entire the entire h t s and health care solutions network was perpetrating fraud and to get more money depending on how many people they said were in the group therapy sessions yes they they received more money if they had more patients in the sessions so that's a perhaps of the most direct way in which to show that they received that there was one there was an intern what are that's compensation correct for for her involvement for misrepresenting the nature of the quote therapy unquote that she was giving for writing fabricated notes for writing cloned notes she was then receiving compensation as were crabtree and will in order to keep her job she had to write phony notes that's correct not not only write for the notes but also purport to give therapy that she was not actually giving to all of the other fraudulent activities that the other therapists were doing with that i'll go ahead and turn to the collateral estoppel issue again unless the court has further questions on the sufficiency claims the core question in collateral estoppel which is a narrow exception to the general principle that the government can retry mistry counts is that if facts have been decided in a first valid proceeding they cannot be real it a gated in a subsequent proceeding and that requires the court to say so what facts have necessarily been decided and  questions from the from the court from judge rosenbaum point out the facts that the jury's verdict on counts six through eleven decided is that the therapists were not criminally liable for these six specific false statements in those notes that's it the indictment as judge or brando pointed out specifically charge those notes those that verdict on count six to eleven says nothing about to to repeat to go back to the colloquy i just had with judg oh the therapists involvement in giving fake therapy so to speak the therapist's involvement in both making omissions and commissions in their notes omitting the fact that they were only giving fake therapy  and then saying they were providing certain kinds of therapeutic interventions which clearly they were not testimony from multiple witnesses bears that act so that is the at base the factual inquiry that the collateral estop  as my colleagues on the other side suggest that the therapist so well involvement was cloning notes and that therefore that was now i think that would pose a problem for us if our both our indictment and the trial evidence showed the therapist role here was including these particular notes jury acquits on those i don't see how we could retry on one conspiracy but the ash inquiry is you look at the whole record you look at the forge evidence regarding those six notes we did yes and not the retr at the first trial of course the jury rejected that there was no evidence of the retrial in fact one of the issues in the motion to dismiss on collateral stoppel grounds was also an evidentiary challenge the government said we will not put on evidence of those notes th a sort of a subsidiary dispute as i understand it now which is whether one of the agents had asked i think it's defendant crabtree about one of the notes and then crabtree made an incriminating statement and then whether that was put on at the second trial i've read the record it's not clear that it was one of the six acquitted notes but that actually it's not clear how that would matter it's not evidence of the note and that is to sort of back further up this court's decision and gill actually says it's ok to do  to use evidence that has been the basis of an acquittal which which makes sense i mean one single piece of evidence could be that it could be relevant not only for something for which there's been an acquittal but also four counts that are still valid before the jury  also the more specific involvement of the therapist again the playing movies in their in their quote unquote therapeutic sessions etc i want to speak briefly to larkin who the larkin decision nine hundred seventy nine and then modified in one nine hundred eighty  i think that's a very difficult decision to make sense of i would say that both this court in ohio and relied on it and then the fifth circuit in gager before it went up to the supreme court relied on it and after this court sees it as still valid precedent it's the same precedential court how the court makes sense of that but even if we say as far as the circuit is concerned yeager remains good lawyer does not preclude or did not preclude the retrial here i think it most eager stands for the proposition that when you've got a conspiracy and then you've got substantive counts that themselves charge objects of the conspiracy and the jury  acquits on the substantive counts and the government has relied solely on a vicarious liability or pinkerton theory then the government is precluded at the retrial from trying those defendants to the extent they match up with those specific substantive counts that were the basis of the acquittal what about the defendant's arguments that they have to match up because necessarily be the jury must have found the defendants not involved with the conspiracy is related to those notes and if they weren't involved in the conspiracy as it related to those notes they could have been involved in the conspiracy at all because those notes were effectively in a conspiracy that's that's too broad a reading  of the whole line of collateral stoppel cases and i think it's an unfair reading of the the relevant record both the charges and the evidence elicited at trial itself in bravo fernandez the case that the supreme court decided last term it spoke specifically about using a guarded application guarded application unquote of the collateral estoppel doctrine in criminal cases that means you look to what the jury necessarily decided and so you can't just broadly say well the notes showed some kind of fraud so therefore than those fraud in those six notes covers the entire field of fraud that that the therapists involved were involved with here and then not to repeat myself but basically the trial evidence showed that the therapist fraud was far greater than just the additional point i think judge rosenbaum you had the colloquy with a couple of my colleagues on the other side the jury instructions make clear that the jury should not any reasonable reading of the jury instructions from trial one says the jury doesn't even get on the we're in the middle of closing arguments at this point the defendant and a section of the government and and risso have given their closing arguments a the judge comes out and says we have had a jury who is forty five minutes late as judge rosenbaum pointed out thirty plus forty fifteen because i think mr mendez had gotten up and said just fifteen minutes and the and the court corrected and said actually that's forty five minutes i'm going to go ahead and replace this juror at that point there an objection saying well wait a minute the defense would like to be heard on this and the court said this jury has been late a number of times i made clear at the outset i'm not sure the judge said at this point but the judge had made clear at the outset that being punctual was was a critical part of being a participating juror were therefore going to call in an alternate and go forward with closing arguments in our view that is well within the discretion of the district court maybe there were things that the court could could have done maybe calling a hearing would have would have made this record a bit more fulsome for this court's and not let let's just talk about the factual record here sir so the defendants say that in fact these juror had not been late and that you could tell that by reviewing the the transcripts and the times the trial started and if it started on time then clearly the germ usted been there what is your position on that so the record is not as full on this is one would like i think we have basically that representation as against as your honor put it the representation from the judge himself who said this jury has been late a number of times i think when this court looks to construe errors on appeal it uses typically a clear error standard i don't think it would be error for the judge himself to have made the observation that this juror has been late a number of times you know if we go back and we look at the trial transcripts and i can remember now if the judge started trial and eight or nine or whatever it was nor do i let's say the judge start a trial of eight in every day for the fifteen day trial trial begins at eight o'clock in the morning i mean it seems like it would be contradicted that statement would be contradicted by the record and could be clearer under those circumstances if that's the case i don't know whether it is i did not do that i don't have all i could go into after this after this hearing so i think that's fair although what it also doesn't take into account is what time and again maybe it would have been better for the judge to have have held a hearing on this but this is a discretionary standard and this is one where when you're in the end i'm not sure that there is necessarily a hearing needed if the facts are as the court said they were i don't i'm i'm not sure that that would have been an of discretion but if the facts weren't as the court said they were that might change things and that's why i'm asking these questions and i don't have and i said i didn't undertake the same analysis my colleague did to look and see is that what time i took the judge's representation that this juror had this was not the first time this was a juror who had been late a number of times and then let me also says this was this the only african american on the jury i do not know i don't know we would i know that if we had a hearing the mere fact that the jury's composition changes including a racial competence to racial composition isn't enough to establish prejudice and this court in acevedo more recently said yes prejudice is something under rule twenty four c that the defendants have to show the record we do we would know what the racial makeup of this jury under this under this record i believe that's correct i believe there's nothing in this record that tells us that then the juror who was substituted replacement you're a list not a minority i believe that is that is on the record and even even the fact that the juror who was replaced was african american i think that there are traces of that on the record it's  confirmed either i think one of the trial counsel gets up and says i believe the juror who was dismissed was an african american and it sort of you had already made the objection about about the substitution and i think was just making a record on that point  but again our our core our core point here is this is an abuse of discretion standard we are in the middle of closing arguments this is a habitual late juror and the district court has ample discretion which it did not abuse under rule twenty four c several days i'm not about to have him be put on the stand and tell us how he came to that conclusion i that's all i need from just go to the tell me at that point that he knows she's been late but and i hear what you're saying although i think that it wouldn't be unprofessional or inappropriate to say i'm sorry your honor i my records show that she's been on time and i've got a lot of trials but and less and less you don't know that she's been on time or he's been on time right and i said i didn't know that and i didn't know that and i don't know that but except the judge told us said to me that ends the inquiry there especially if i'm going to be going out and trying the case the next few days with him but i do believe that the record will show that we began promptly but maybe she was in there as early as ten or fifteen minutes before trial she just called expects us to be there's a reference there where i walk in and he says no way you're not late just not early so i don't know what was going on but i do believe i did say that let's give her more time because the judge wilson she was african american that point out to the judge to say to the judge judge she's our only african american or she's african american and she's going to be replaced by a non african american was that part of the discussion that was part of discussion when joe scola later on excuse us a nother african american juror and i begged him not in the one before that not on that day but when when he excuses another one and now i think we were left with maybe one african american juror i beg just please don't excuse this one because you already excused the other one and by the way there were bats and challenges during jury selection so i was very sensitive to that fact i did when you have a juror that you're making closing arguments to you do tailor your arguments to your jurors and that means whether they're men women older or younger black and white and i had argued my closing arguments with the knowledge that i have two or three african american jurors that i wanted to connect to just as i did with the other persons but there were specific documents concerning the amount of money my client made for example which i thought would resonate with african american jurors who might say as i wish they would say that don't hold it against my client because he made all this money look at the expert who testified who was why she makes more money why can't he make as much money as she does for being a psychiatrist and on that issue of money judge he did make that eight hundred thousand dollars all i can say is that the lion's share of that was made in the first year where gonzales the main coconspirator says i gave him that money to help me develop the business it had nothing to do with the claims he has an opportunity is given a softball to bury my client doesn't doesn't do that and i harkens back to my argument that all these people could have said something directly that my client did or said and no one did and and finally of course that dovetails with the role because if he was not there and if he's going to be held accountable for not having been there not having done his job well part of that is that he didn't exercise any control or supervision of anyone he was a medical director in name only and if he's going to get stuck with a conviction i beg you to consider the same set of facts in support of my request for a lower sentence on the roll aren't you  and so many people things i'd like to say him be lucky to get one of them out again the forty five minutes thing is the not ask for forty five minutes he asked for a few minutes and then i guess looking at his watch says thirty minutes i  to nine thirty all and then the judge takes that and pushes it out and says well that means fifty thirty minutes more beyond the nine fifteen that they hadn't actually even gotten to yet that so that would be nine forty five so it wasn't like there was  is definite we have to have forty five minutes we don't we have no idea how long it was going to take the jury to get there because the judge had already told the juror don't even come in and that's really problematic it's really problematic when you when the judge mr mendez saying no idea she's been late i think that's an objection mr sloppy is counsel then joins in the objection and the record shows there was never a single moment's delay during for any juror so that this is a really important issue the government says rodriguez says you have to show prejudice but that's not what how i read the on point decision this court in peak weekend and that's not how i read the supreme court decisions we cited in our in our case this is a pretty fundamental issue even apart from the particular focus on the on the other issues my client is the intern are in the brief time i would like to say that in this case no rational basis for there is no rational basis for this crappy therapist to be acquitted of count six and seven the therapy fos there be no it's coun and still for a jury to find her guilty of the conspiracy which is of the standard the court would have to find for a retrial on the conspiracy count these therapy notes were so important and soley the the role that the therapist played in this conspiracy it was all about their doing these notes which were allegedly false in order to doctor the files so that if there was an audit there would show therapy notes that was it for the therapists it is not too broad for the court to interpret the acquittal of those two counts to mean that she was not part of this conspiracy because those notes were everything if you go back and look at the closing are by the government you'll see they hammered away at the notes thank you  he was the calm weather i'm sorry the common goal the conspiracy the nature of the knowing scheme and the overall and the the object i'm sorry the overlapping participants when you look at all three elements those are present here swartz i know that you were appointed to represent mr crabtree in the court thanks you for your service