to own testimony trial counsel focus on the plan exception and appeal counsel focus on a mistaken identity what are you focusing on well i said i really do you think it fits under both of them the identity exception is where you say i didn't do it this is the fetter guy did it this is who did it and in this case we were saying the billing and management companies but honestly this was a scheme that was ongoing the  but essentially what we are saying is that dr fire punk had the right to say i didn't do it this is who did do it this is how it happened so i would call that identity i think if you want to call it common plan or scheme that's really another way of saying the same thing in this case it's not it's two different exceptions and you argue you went off on clearly on the mistaken identity well i was in my opening brief i had dressed as cases that had been that the district court had relied on really that wasn't the focus of the district court court's holding with the district court really was focusing on was rule for a one and rule for a fourth for us three and the district court was saying this is going to open up a can of worms we're going to have to have a mini trial but i what i'm thinking stepping back from the witch exception it fits into this is a case where the district court really took the minutia of the the rules of evidence and the very unusual application of rule for a for b to preclude dr fire and punk for putting on from putting on a witness that was critical to his defense in a case where he was really his his testimony was was was critical to how the case was going to be decided from the jury perspective it was either you believe him or you don't believe him and he had another witness who could say look the same thing happened to me now i think that fits well under the identity exception which is how this court has addressed those reversed the issues so you know i think even if i did waive that it fits under identity as well and it really is the core constitutional element of the sixth amendment that  correction that were in your brief did refer to the plan exception well i really and in my opening brief i don't believe that i did refer to the plan is i find it but if you you can tell me where it is although i don't believe evidence i mean isn't it only to show that h p and steering did this before so they did it again that's why it's not him yes it is saying that they did it at the same time they were doing it with this other doctor and so it is an other act it's the exception to the the that it's propensity evidence it's not that's not admissible well it is admissible if it goes toward identity to say that that he was tricked and that they were the ones who had actually perpetrated the fraud but i but the supreme court has really said to take these rules of evidence and he used them to preclude the a sixth amendment constitutional right to put on your defense to really do what what is the core thing and in this case where the government was able to to introduce all of these other claims to really tell the the full story of of the part of the scheme that they wanted to tell and then not to allow dr fire upon to call this witness who had exactly i mean with a few minor differences in the type of test but centrally the same relationship with the billing companies as well so even if the court could have allowed dr owens to testify under four of four one why was it an abuse of discretion to preclude that testimony under four of three given that it dr owens had no insight into what happened in this particular case gotten off or nothing directly and said we'd have a many side trial on her whole experience and you know obviously the purposes of rope were three is you know it's undue prejudice and taking up too much time and distracting the jury from the case at hand it really wasn't that complicated her story and i think it was more complicated in the district any interaction but they had the same relationship with those the management company and the billing company and so you know juries are smart they can listen to that evidence and i'm sure the government would've impeached her mate she probably would have been appointed a lawyer to consult with as well it's hard to say how it all would have played out but to just tell the diff the defense you can't even call this witness you can't even try to put on this this evidence that  crucial corroborating evidence to the defense to because this is a situation where most juries are going to know any jurors are not going to know anything about how medical billing works and that a doctor could be focused on the the medical part of what he's doing and not be paying attention to the billing but that and that if i think the other thing that was unusual in this case was that he was reading th just in certain certain cases he was available for consultation but he wasn't actually performing the test and she had that that exact same relationship which is not something that the average person would have been familiar with and to have another doctor already serving three hundred twenty four months on unrelated charges yes those charges are done deal they're already final yes this is have any practical effect on him whatsoever one way or the other i don't believe it has any effect on him and he may be filing a hay views petition in the sixth circuit case but unless that ends up being successful i don't know maybe to walk a little taller in the main yard or something but this is he's not getting out of prison any any sooner correct i think it is important to him in terms of his his identity as a doctor and you know i will sir i certainly would say that this this case is important to him personally in terms of how it affects his day to day existence it may not affect it but the sentence is not affected  jury confusion yes well the similarities in these relationships were are are high and there are a few little differences but in essence the pro value was in extremely compelling in terms of putting on his defense the danger of of waste of time and confusion of the issues  i think i think that's the sort of thing that the jury would have been able to sort out that they could have i'm sure the prosecutor would have cross examined her but it's not all that complicated in terms of whether she was also tricked by the say billing companies and what the differences are one witness this wasn't you know it was in this incredibly long trial and it really was just whether you believed his story of of how how this had gone down with the  any of that no i'm not aware of that at all i don't think there's anything in the record about what would have happened were how long the testimony would take anything like that precisely i mean her interview was ninety minutes but that was a long interview where they were looking for files and and that sort of thing i can turn to the other the second issue if you like me generationally her i'm your dime ok well the second issue is the theory of the defense instruction and i would i just like to say about that is that what makes  different from the other good faith cases is that there was all this evidence about his violating medicare regulations and so there was there was evidence that he had been informed of these medicare regulations and then these medicare fraud investigator fraud investigator and another administrator testified saying we looked at the case we determined there was an overpayment we did we determined that he had incorrectly done this and that  violated these various regulations and the jury then was left with this test vote of somebody who is really knowledgeable about medicare who's very familiar with the case and how these regulations work and she had determined that he had violated these regulations and so for that reason the jury needed some kind of instruction on how to how to deal with that and and the burden of proof and whether that's enough to meet th one of the issues in this case which is this notion of what was the evidence actually being offered for and under what syrian did the district court have an opportunity to really infuriate that  now had it been offered at that time under the identity theory then i think the question would have been an analysis as typically isn't your identity which is there is a single crime with a specific and distinctive modus operandi and one of two people could have done it and the defendant on trial is pointing to the other defendant saying they've done something in a substantially distinctive way in the past therefore they must have done this not me that's not this case this case is not about a single bank robbery for example as it was in perkins where one of the only person who could have done it was one so this was not that case but had that argument been made i think this the court would have  way more and i think would have also properly excluded it as it did here under the three separate grounds as it being irrelevant as it being improper for for being as being time consuming and confusing under four three now i think at bottom what the descendant was trying to use dr o in his testimony for was to put on evidence of dr zero and his state of mind in order to show what the defendant's state of mind was because the state of mind was what was really at issue in this case wasn't she wasn't he trying to show and he may have done it in a ham handed way maybe didn't preserve it i don't know but isn't he trying to say look they they tricked me and not only that they tricked this other doctor too but i think i think that goes back to the using someone else's state of mind to show whatever call it white why wouldn't that be admissible look they had drugs in my trunk you don't have to take my word for it they had drugs in the other guy's trunk to o well i think there are several problems some of the missing i can unpack that here so the first off is that the only way you and it's not clear from from her interview that she could make that for example she didn't interact with h b financial directly there were much she didn't seem to know about or have been asked about the time but if we assume that the defendants proffer as to what she would have said that she had this arrangement and then later found out that it was mean that that was the situation again you're relying on her state of mind with respect to that arrangement why is her state of mind she saying i got they got they they did falls billing under my ny state of mind that's what she would get up there and say well i think that the issue of whether days is false billing is i think largely undisputed the issue was whether the defendant knew that they did ok and if she says they did it without my knowledge and consent why why wouldn't that help bolster his story that they also billed under his name without his knowledge and consent because in order to admit that you are essentially saying that her state of mind of how she arrived at that state of mind is analogous to the dependence over here and i think there are where is the defense counsel said that there were some differences but not significant i think the differences are not only more than some but are significant in terms of the intent appear to be seems like she was at her clinic at the time he didn't actually perform or interpret any of the n c v s that again unlike dr owens dr owens was radiologists radiologists typically perform caterpiller typically interpret tests not perform that's like saying you know in my drug smuggling case where the guy says you know they had drugs in my car and you know it's to me when you get up and say we have a jersey is a chevy and they had a ford ok i mean what difference does it make whether she's a neurologist or radiologist or whatever it is the point she's made with the point he's trying to establish is that these billion people pulled a fast one on him just like they pulled a fast one on her now you can you can argue to the jury why you know why that is or isn't a valid defense but i'm having a hard time understanding why that wouldn't be relevant to bolster his story let me see if i can explain it this way so if this sort of goes to another one of the questions that your honor had about what would the government have government for her complicity in medicare fraud that much is apparent from the record that if she was under investigation that came to light and so the government because she would by taking the stand be putting additional her credibility with respect to what she says her state of mind was with respect to this different arrangement she had with the financial and here in the government would be impeaching that to show that she did in fact know what was going on then the government could you tell what did you who you would call to do that i don't recall that we were asked that particular question and i would also note that at the time although it appears that on appeal defendant has narrowed what he wanted to do at the time what defense counsel proposed to the court was to put on dr owen it was to recall dr julie hartmann from safeguard services talk with her investigations doctorow and it was that in terms of rebutting this evidence the government is going to essentially have to put on trial as to whether or not she had the necessary state of mind state of mind is almost always the sole issue in these health care fraud cases but you didn't say we were going to call witness a b c or d and this would take two hours each or anything like that no we did not say that specifically we did make clear the differences that we thought that there were between these cases but i understand you say she was a radiologist and he was a whatever he was a neurologist he wouldn't use the internet as an anchor i think it goes beyond what in terms of judge he's finding that this would have consumed a lot of time i don't see where he where he where he got that if he didn't tell him what you were going to have to do well i think he was considering the three different witnesses the different scheme the which isn't even considering the difference in which i  do i disagree on i think it is different i think but with there is a difference in whether we take a lot of time or two different things and focusing on how much time this would have taken and so i think he was thinking about those things what the government would have had to do in response it is true your honor that we did not specify which particular witnesses we would have had to call or vital just like you have a lot of time to sort of came to him without any any showing on your part well again i think he was thinking about the amount of time it would take to show the differences and you didn't tell him how much time militate i don't think we made it ok that's what i'm trying to get out of it ok so no we don't really know how much time it would take in the differences are that he was an internal medicine doctor and she's a radiologist i disagree that that's reducing it what i think the differences that go to intent which show why one state of mind can't be used to show another person's state of mind is i mean is things like that doctor farm song was going to keep thirty five percent of the proces for doing nothing not being patient not performing the task not interpret ing the test she was going to keep twenty percent a much lower percentage for actually doing something the thing that a radiologist always of her protest you also have the fact that when the when defendant was asked about why he didn't tell medicare about these other individuals when he had the opportunity when medicare asked him who else might might be related to these services he didn't tell them and when i asked him out on cross examination i asked him why he didn't do that he said because i don't snitch there was a considerable amount of evidence going to his knowledge intent that there is no indication in the records that dr i went with had anything relevant to say on that in fact her state of mind was based on such a different set of circumstances that it really can't be parallel and you can think about this as well i grant you i grant you that it was not in the record mentioned in the record so imagine the start ario in which the defendant in his case puts on dr owens in addition to his own testimony because as it makes clear he was going to testify whether or not our pros have supplied or not and then the and to say that she had this arrangement and she was she was duped by you can imagine that the government in rebuttal might want to put on dr mckillop who is also investigating for similar health care fraud to say she had a similar arrangement with h b financial in syrian but she didn't know about it and she was duped by it and so you go back and forth with the state of mind of other people when what's at issue was the defendant's state of mind his unique circumstances that are ancillary to the just the issues that dr owens might have been able to testify about so again i think your honor that it goes beyond just she's a radiologist and he's an internal practitioner but to these other things which are different situations the considerable evidence as the court recognized that was presented regarding knowledge and payments to a financial made through dell almost stakeouts for example going to is intent as to whether or not this was actually legitimate no indication that applied to dr owens at all if going on and going to the time that would take place couldn't typical trial management tools such as time limits on witness testimony or jury instruction eliminate the risk of jury confusion well i don't think it would in this case because of how much would have the need to have been attacked with respect to the assuming again that defend it was correct and proper came in as expected is to attack that state of mind of dr owens as actually that she wouldn't be credible if she in fact claimed that she had been duped by it so i think that you would have to go into that this is of course aside from the fact that the as the court recognized she was almost certainly going to need counsel for this so this was not an issue that was brought up in the pretrial conference even though the defendant had the evidence of the time even though the defendant had already essentially chosen the defense because it was sort of forecast in the motions eliminating so it could have been brought up before prop and instead it was brought up right in the middle of trial and there is an additional delay that's involved in getting the person counsel getting that counsel up to speed enough with what the issues would be with respect to her health care fraud and her exposure on it and then determining whether in light of that she's able to sign something some portion of that whether you still have these other witnesses who are also going to testify it would also have to be recalled because at least one of them is hartman had already left i believe so she would have had to be recalled so i think you had the court thinking about all of that thing again relying on what the defendant had told it and told the court that what he wanted to do which is to talk to these three people regarding the defendant's state of mind i see that i'm close to running out of time here so i want to i do want to move on just very quickly to the the the issue of the jury instruction this was not your own or a case of not dotting your i's and crossing your t s it was not and the disregard factual findings are entitled to deference on this point a case of whether or not the defendant knew what the regulations were the issue to that he was claiming it hit the theory of his defense was that he was relying on somebody else he delegated essentially some responsibility somebody else but that doesn't show that he didn't know what the regulations are and this wasn't a case about violating a regulation it was a case about someone who didn't do any services and yet billed nine i think roughly nine hundred thousand dollars in the span of six months for them of which he kept thirty percent three hundred thousand dollars which is again not it not a bad take when you're when you have an essentially done anything in his defense to that was w his defense entered to his defense to doing what you just said is was what is defense appeared to be that you relied on other people too that he thought services had been performed he essentially outsourced and that was the defense he made and the jury found not to be credible likely in large part because the district court realize recognize the the the government's case a considered and primarily focused on the defendant's knowledge and  has provided a lot of evidence related to that separate from from these arrangements which the arrangements weren't really in dispute the government presided had presented knowledge or evidence of the payments between the two entities or the entities and if i just make them i say i'm just going through and i time so with respect to the instruction awad clearly controls i think that that's not required in this case properly properly points and the first is just to note that in the district court when this issue was first raised the the reverse for four b cases were cited by the government and the district court certainly used that as sort of his third on i mean really his concern was it wasn't relevant that that first doctor fire upon would have to show that he had been tricked and then bring in this other witness to and at that point he hadn't testified so he hadn't shown that he'd been tricked and then bring in this other witness tricked and so he felt that wasn't relevant and the forest the three concerns in terms of when this was all raised the record shows that the government turned over this recording to the defense one to two weeks before trial and the defense had put her on its witness list and they handed to the government and it was at that point that which may have been in trial or close to the time of the start of trial when the government raised it in in court and then finally just that to clarify that although the government the government really winnow down these claims so there were these five counts although there were hundreds of other claims that they also brought in but and those five claims involve the  tests which were tests where dr fire upon was available for consultation but didn't actually read the reports but a lot of the case concerned sleep studies and in those he had a very similar role to d owens where he was actually reading the test results and writing the reports and those so in that when you look at the whole scheme certainly he had a very similar role to dr owen and if there's