[00:00:02] Speaker 00: Good morning, Your Honor. [00:00:03] Speaker 00: Ben Coleman for the Appellant, our talk of Sepian. [00:00:07] Speaker 00: I believe the threshold issue in this appeal is whether when evaluating the validity of the 1028A conviction, this court is limited to the possession theory that was instructed to the jury, or whether this court can look to a different use for jury theory that the district court relied upon and the government heavily relies upon in its brief. [00:00:30] Speaker 00: Our position is that, based on a solid line of authority, including this court's decisions in Avery and Romero and the Supreme Court's opinion in Boosley, that this court is limited to the possession theory that was instructed to the jury. [00:00:47] Speaker 02: The government doesn't really, I think... Even if we're limited to possession, are we limited to HT? [00:00:55] Speaker 02: Or would we look at the possession of other patients or victims? [00:01:01] Speaker 00: Well, I believe that you are limited to HT. [00:01:05] Speaker 00: Before explaining that, I would note that the government has not relied on any other victims in their brief. [00:01:10] Speaker 00: So I think they've waived that argument. [00:01:13] Speaker 00: There's been no discussion of any other victim. [00:01:16] Speaker 00: But I do believe that the court is limited to the theory that was presented to the jury. [00:01:21] Speaker 00: And that was simply a possession theory based on HT. [00:01:25] Speaker 00: So for both of those reasons, both the waiver by the government and we believe under, you know, Avery and Romero, this court is limited to a HT possession theory. [00:01:35] Speaker 03: So suppose we agree with you on that much. [00:01:39] Speaker 03: Now what? [00:01:39] Speaker 03: Dubin comes down and there's no finding in the record that Seppian's possession of HT's identification materials [00:01:54] Speaker 03: was at the crux. [00:01:56] Speaker 03: There's no finding that it was at the crux of the medical fraud in this case. [00:02:02] Speaker 03: What do we do? [00:02:03] Speaker 00: Correct. [00:02:03] Speaker 00: Well, I guess the court has two options. [00:02:05] Speaker 00: Number one would be to remand for further analysis. [00:02:09] Speaker 00: And number two would be to decide the issue on your own. [00:02:14] Speaker 00: We'd urge the court to decide the issue on your own simply because a matter of timing. [00:02:19] Speaker 00: Mr. Osepian has already served about 10 years in custody. [00:02:22] Speaker 00: And his release date is now actually less than two years out. [00:02:25] Speaker 00: So if the case is sent back and then we have to litigate it below, he's almost going to complete his time by the time that happens. [00:02:33] Speaker 03: So what do we have in the record that we could make that determination? [00:02:37] Speaker 03: I mean, do we have any specific information about what the nature of the ongoing fraud was when Osepian joined the conspiracy? [00:02:49] Speaker 00: Well, the court does. [00:02:52] Speaker 00: When Oseppina joined the conspiracy, they had already used HT's information to get her prescription. [00:02:58] Speaker 00: He came into the conspiracy after she received her prescription. [00:03:02] Speaker 00: The government's only argument at trial was that the mere possession of her Medicare copy of her Medicare card in her file, that that was their only theory as to how he was [00:03:18] Speaker 00: Guilty of 1028 a so I think that the court can just simply that is their theory of liability at trial. [00:03:25] Speaker 00: We believe that theory is invalid under Dubin because certainly the mere possession of a copy of her card and her file was not at the crux. [00:03:33] Speaker 00: of the underlying fraud and if that could be a valid theory then we're now just back to a pre-dubin world because then every single healthcare fraud case would involve a 1028A because all medical practices keep a copy of the person's [00:03:50] Speaker 00: insurance card in their file. [00:03:52] Speaker 00: So that was exactly the result that Dubin tried to avoid, which is that every single health care fraud would become a 1028A. [00:03:59] Speaker 00: So we think that the court could simply look at their theory, which was that the mere possession of a copy of her card in her file was good enough, and say that that theory is invalid under Dubin, and then reverse the 1028A conviction. [00:04:15] Speaker 04: There are two wrinkles, I think, with that argument that I'm [00:04:20] Speaker 04: Wondering about one is I think the case lining case is cited about when the concealment is in furtherance of Conspiracy a lot depends on the timing and whether the object of the conspiracy has been achieved or not and it seems to me clear from this record that [00:04:40] Speaker 04: There was continued activity in furtherance of the object of the conspiracy well past October 2010 when HT's identity was used. [00:04:56] Speaker 04: So there's possession, it seems to me, in furtherance of identity theft that postgates Mr. Ofsepian's entry into the conspiracy. [00:05:08] Speaker 04: and concealment that furthers the object of the conspiracy. [00:05:13] Speaker 04: So I think there's a complicated question there to me of whether that constitutes possession during and in relation to the furtherance of the conspiracy to commit healthcare fraud, or are we talking about possession only with respect to the specific [00:05:31] Speaker 04: misrepresentation about who was obtaining HT's prescriptions. [00:05:36] Speaker 04: There's a legal question there to me. [00:05:38] Speaker 04: And then secondly, I think under my understanding of when we're doing an actual innocence inquiry is that we're not necessarily limited to the trial record and that both parties can introduce new evidence, which [00:05:54] Speaker 04: There's a question in my mind of whether remand is necessary for both sides that have an opportunity to introduce evidence of possession that would post date Mr. Arbsepian's entry into the conspiracy. [00:06:07] Speaker 00: Well, I guess on the latter point first, you are correct that in an actual innocence inquiry, the government can introduce other evidence to show that he wasn't actually innocent. [00:06:18] Speaker 00: They didn't avail themselves of that below. [00:06:20] Speaker 00: They didn't submit any additional evidence. [00:06:24] Speaker 00: They haven't argued on appeal in their brief that they have additional evidence. [00:06:27] Speaker 00: So I think they've waived sort of any reliance on any additional evidence. [00:06:33] Speaker 00: To get to your first question about the ongoing possession, [00:06:38] Speaker 00: I don't know that if the court were to somehow find that simply continuing to possess the documents, even if there's an ongoing conspiracy related to other people, other patients or victims, that that somehow would be sufficient. [00:06:55] Speaker 00: I still think that we're then going back to a pre-dubin world where all medical offices are going to maintain files. [00:07:04] Speaker 00: continuously of their patients. [00:07:06] Speaker 00: I think you're obligated to maintain a file. [00:07:08] Speaker 04: I'm not sure that that necessarily follows because we still have a requirement here that misrepresentation about who is receiving the services be at the crux of the alleged fraud and it seems to me there's at least with respect to some of the victims including HT that there was a misrepresentation about who was receiving [00:07:28] Speaker 04: her prescriptions, and then the subsequent misrepresentation about who signed that retraction letter. [00:07:36] Speaker 00: Right. [00:07:36] Speaker 00: And I guess then we come back down to, you know, the indictment did not allege a forgery. [00:07:41] Speaker 00: There was no forgery allegation in the 1028 aid account in the indictment. [00:07:46] Speaker 00: The government, the jury was only instructed on a possession theory at trial, and the government only argued that the mere possession of her card was what triggered the 1028A violation. [00:07:56] Speaker 00: So [00:07:56] Speaker 00: Our position is that going to that retraction letter, that was not the basis of the conviction, and the court can't rely on it now. [00:08:05] Speaker 04: Well, I'm not suggesting that the use, the signing of the retraction letter is itself what is, there's possession of her identifying, means of identification for the purpose of being able to use it. [00:08:18] Speaker 04: I mean, I don't understand how else possession could be criminalized here, except if the, [00:08:25] Speaker 04: I understand there's a sort of stealing, how do they acquire the information? [00:08:32] Speaker 04: But then it seems to me it would reach possession for the purpose of the unlawful use. [00:08:40] Speaker 04: So to me, it seems that we have [00:08:42] Speaker 04: A couple instances, several instances of unlawful use that I guess would be evidence of the intent to possess for the unlawful purpose. [00:08:51] Speaker 04: And then if this healing element is satisfied, why wouldn't that count as possession? [00:08:57] Speaker 00: Well, you know, the Supreme Court, I guess, wasn't very clear on what they meant by crux. [00:09:01] Speaker 00: But I think possessing a copy of her card in her file was not at the crux of this fraud. [00:09:09] Speaker 00: I mean, the crux of the fraud was obtaining medically unnecessary prescriptions. [00:09:14] Speaker 00: And Mr. Osepian wasn't even in the conspiracy at the time that they obtained a medically unnecessary prescription. [00:09:21] Speaker 00: At this point, if possession of a copy of a card, I mean, that would just open up virtually everything. [00:09:29] Speaker 04: I don't understand the Supreme Court would be saying if the possession of her card has to be at the crux, it has to be the misrepresentation of who is receiving the services has to be at the crux. [00:09:39] Speaker 04: And they were, at that point, analyzing use. [00:09:42] Speaker 04: But then it seems to me, how do we apply that in the possession context? [00:09:46] Speaker 04: If you're possessing someone's means of identification, [00:09:50] Speaker 04: so that you can misrepresent who was receiving the services. [00:09:55] Speaker 04: I mean, we don't have a lot of clear guidance from the court about whether that's included, but that seems to me at least one plausible reading of the scope of the statute. [00:10:07] Speaker 00: Well, I guess we would argue the possession needs to be sort of simultaneous with whatever the fraud that's occurring, that some possession that occurred a year and a half later just simply in the file isn't good enough. [00:10:19] Speaker 00: That would be our position. [00:10:21] Speaker 00: But I think in order to eliminate a pre-dubbing world where every healthcare fraud conspiracy then turns into a 1028A, this court should not be looking at possession that broadly. [00:10:33] Speaker 00: I see I've gone over my time. [00:10:34] Speaker 02: Can I ask one more question? [00:10:36] Speaker 02: Sorry. [00:10:36] Speaker 02: I wanted to follow up on your answer to Judge Wardlaw's earlier question where you were talking about our options here to figure out the crux. [00:10:44] Speaker 02: One was remand and the other was to decide it ourselves in part because of the timing. [00:10:48] Speaker 02: Do you think that it's a factual question? [00:10:51] Speaker 02: I'm interested in your idea that remand is an option because I'm wondering if you think there are fact findings that need to happen or if this is really a legal question. [00:10:59] Speaker 00: I don't think that there are fact findings that need to happen. [00:11:02] Speaker 00: The only reason why I had mentioned remand was if the court wanted the benefit of the district court's analysis, I guess, first before deciding the issue in the first instance. [00:11:12] Speaker 00: That's why I don't think the court needs to do that. [00:11:14] Speaker 00: I don't think the court needs to remand. [00:11:15] Speaker 00: I think that the court can look at the trial record, the jury instruction, and the theory that was presented to the jury and decided on its own. [00:11:24] Speaker 00: But I mean, certainly, I guess the court has the option if you wanted [00:11:27] Speaker 00: the district court, which generally is more involved in the case and the trial proceedings to look at it first, you can. [00:11:34] Speaker 00: I would note that the district court, the district judge in this case is not the judge that presided over the trial because Judge Otero presided over the trial and he retired. [00:11:43] Speaker 00: So I don't know that you're going to get the benefit of the trial judge weighing in. [00:11:47] Speaker 00: It's really a legal question that I think the court can decide on its own. [00:11:50] Speaker 03: To have one further follow-up on that, if we were to remand, and I'm not sure, given the situation, that's the right thing to do here, but if we were and we think the record as it stands is insufficient to support the conviction, is there a mechanism for vacating the sentence and [00:12:15] Speaker 03: releasing your client on bond or bail pending some future determination or further fact-finding? [00:12:24] Speaker 00: Yes, Your Honor. [00:12:26] Speaker 00: I think if the court agrees with my argument that the evidence that the conviction is invalid, what I think what this court did in Avery is that it vacated the conviction and then the government has an option at that point. [00:12:39] Speaker 00: They can actually try to retry the 1028A [00:12:42] Speaker 00: case charge if they want. [00:12:44] Speaker 00: That's what this court said in Avery was that the conviction is vacated and then either you can go to a re-sentencing without the conviction or the government has the option of retrying the 1028A conviction on a charge. [00:12:58] Speaker 00: And so I think that would be the appropriate procedure. [00:13:01] Speaker 02: What if we weren't sure if it had to be vacated though? [00:13:03] Speaker 02: If the idea was that the remand was necessary to do fact finding to figure out if the conviction was needed to be vacated? [00:13:11] Speaker 02: What do we do then? [00:13:13] Speaker 00: Well, then it would just be a remand for the district court to evaluate the record. [00:13:20] Speaker 00: And I guess if Your Honor is suggesting perhaps additional evidence that would be introduced in that scenario, then the court would make a ruling. [00:13:31] Speaker 00: The district court would make a ruling. [00:13:33] Speaker 00: I would note, though, that we have also raised jury instruction claims. [00:13:38] Speaker 00: If you know, we believe that the count should also be vacated based on the defective jury instruction. [00:13:44] Speaker 02: So I need the actual innocence to get over cause and prejudice. [00:13:49] Speaker 02: I'm not sure you can get out of this innocence issue. [00:13:52] Speaker 00: Well, I agree with your honor that one way to get around default for the jury instructions is actual innocence. [00:13:59] Speaker 00: We've also argued ineffective assistance of counsel as a way to get around the default as well. [00:14:04] Speaker 02: So requires anticipating Dubin right as defective performance. [00:14:09] Speaker 00: Well, our position was that Dubin relied just on the plain language of the statute, its title, and its context. [00:14:18] Speaker 00: But I understand that it was a decision that perhaps we're all struggling with right now. [00:14:25] Speaker 00: But we think that the defense could have made those objections even before Dubin, and that that would have been the appropriate thing for a trial counsel to do. [00:14:36] Speaker 04: Let's put a finer point on this to make sure we get this question answered if we think remand is necessary just to determine whether there's actual innocence here. [00:14:46] Speaker 04: Is there a mechanism for dealing with the potential mootness problem and releasing your client on bail pending this decision? [00:14:58] Speaker 00: Well, if the court were to remand, I would certainly appreciate if the court were to suggest that bail would be appropriate or something so that the district court understands that that's the situation we're in. [00:15:09] Speaker 00: That's number one. [00:15:10] Speaker 00: Number two, a difficulty I'm going to have with bail is Mr. Osepian's immigration status. [00:15:15] Speaker 00: So I don't know whether I'm going to be able to get him out on bail or not. [00:15:20] Speaker 00: I mean, we would obviously certainly try, but that could be a potential problem for bail. [00:15:26] Speaker 00: And I just wanted to note that. [00:15:29] Speaker 00: Thank you, guys. [00:15:30] Speaker 03: All right. [00:15:30] Speaker 03: Thank you, counsel. [00:15:46] Speaker 01: Good morning, your honors, and may it please the court, Faraz Mohammadi for the United States. [00:15:52] Speaker 01: Your honor, the defendant has simply not met his burden to show actual innocence or ineffective assistance of counsel, and for that reason, this court should affirm the district court's denial of his habeas petition. [00:16:02] Speaker 01: Unless your honors have any specific questions, I'd like to start by addressing this notion of how broad the actual innocence inquiry is. [00:16:08] Speaker 01: The standard for actual innocence is whether the defendant is actually innocent of the crime charged. [00:16:14] Speaker 01: And the inquiry is focused on the substance of the trial record, not the substance of the jury instructions. [00:16:20] Speaker 01: That's what the Supreme Court held in Boosley. [00:16:22] Speaker 01: That's what this court held in Stevens v. Herrera. [00:16:26] Speaker 01: If you look to the trial record, first of all, if you look to the charging document, the indictment, it clearly charges the defendant under all three prongs of 1028 Big A, possession, use, and transfer. [00:16:37] Speaker 01: And at the very least, the trial record supports convictions under both the possession and use prongs of 1028 Big A. The government chose to pursue possession. [00:16:48] Speaker 02: There was no plea deal here that [00:16:51] Speaker 02: led to abandoning charges or anything. [00:16:54] Speaker 02: So why would we let you bring back use at this point? [00:16:58] Speaker 02: I don't understand how any case says that in this posture you would get to go back to use at this point. [00:17:04] Speaker 01: Your Honor, as an initial matter, even if the inquiry was limited to just possession, our position is that these trial records sufficiently supports that. [00:17:13] Speaker 01: But with respect to your question, if you look to Boozley, the Supreme Court specifically looked to the charging document, the indictment, to see what the crime was that was charged. [00:17:24] Speaker 01: And there it said because the indictment charged both a use and carry theory for 924C, that was the basis of which the actual innocence inquiry would go. [00:17:32] Speaker 01: I believe there was a trial in that case, and in that case, the court looked to the trial record. [00:17:43] Speaker 01: And again, the court made very clear in Stevens that improper jury instructions do not somehow negate the actual Innocence Inquiry to the crime charge. [00:17:52] Speaker 02: But you don't go beyond the actual crimes charge. [00:17:56] Speaker 02: You can look at other evidence, right, and fix the jury instructions, but you can't add to the charges that were, that the court made very clear in Stevens that improper jury instructions do not somehow negate [00:18:03] Speaker 02: the topic of the jury instructions, can you? [00:18:06] Speaker 01: It's not adding to the charges. [00:18:07] Speaker 01: The charges were in the indictment, Your Honor. [00:18:09] Speaker 01: It was both use and possession. [00:18:12] Speaker 04: Part of the problem is here is the crime of conviction appears to be just for possession. [00:18:17] Speaker 04: Right. [00:18:18] Speaker 04: So at least by the time there was a conviction, it said convicted for possession, not possession and use or possession or use. [00:18:26] Speaker 04: So then that seems to put us in a completely different posture from any of the precedents cited, but also at least as a matter of legal principle, the crime of conviction was for possession. [00:18:37] Speaker 04: So how do we now, if the question was, can that conviction stand, how do we introduce a whole nother alternative count? [00:18:47] Speaker 01: Because the philosophy behind actual innocence, as this court held in Avery, is you should not have a defendant in custody for a crime that's prescribed by law. [00:18:58] Speaker 01: And the only narrowing that the Supreme Court did in Boosley was saying, well, it has to be based on what was actually charged by the government in the charging document. [00:19:06] Speaker 03: The government can narrow the indictment, and it can supersede the indictment. [00:19:11] Speaker 03: So I don't see how, given that the government narrowed the indictment through the course of the trial in this case, how you can argue that that is the controlling document at this point, because it was clearly narrowed in the course of the trial, and he ultimately was convicted just of possession. [00:19:30] Speaker 03: So why don't you give us your best argument as to why the possession in this case was at the crux of the Medicaid fraud? [00:19:40] Speaker 01: Of course, Your Honor. [00:19:41] Speaker 03: Whatever that means. [00:19:43] Speaker 01: Right. [00:19:44] Speaker 01: And that goes to the limitation set by the Supreme Court in Dubin. [00:19:47] Speaker 01: In Dubin, the court made specifically clear that in fraud context, if the deception goes to who was receiving the services as opposed to how and when the services were being provided, then that goes to the crux of the underlying predicate offense. [00:20:01] Speaker 01: And here, the entire fraud scheme of the clinic went to who was receiving the prescriptions. [00:20:07] Speaker 01: If this was a case, for instance, where the clinic and the pharmacy were prescribing brand-name drugs and billing for brand-name drugs, but were actually distributing generic drugs to the patients, that would be more of a how and when the services were provided. [00:20:20] Speaker 04: There's a little bit of a complicating this case because part of the conduct went to [00:20:28] Speaker 04: did not go to who. [00:20:29] Speaker 04: I think the ones where the beneficiaries themselves were showing up and getting the drugs and then handing them back, I would have a hard time saying there was common understanding of identity theft here. [00:20:40] Speaker 04: What I think we're limiting to is HT and maybe some of the other potential victims, though it's not clear to me why it got narrowed to HT, but it seemed [00:20:51] Speaker 04: It seems the government did narrow it. [00:20:54] Speaker 04: There hasn't been an attempt to show identity theft with respect to any other victim at this point than HT. [00:21:00] Speaker 04: I think I'm looking at HT and that part of the conspiracy does seem arguably within the crux under Dubin. [00:21:09] Speaker 04: I think it does matter because there's some conduct in the conspiracy that wouldn't fit and some that does. [00:21:18] Speaker 04: To some extent, I think that affects our analysis here. [00:21:22] Speaker 01: Yes, your honor. [00:21:23] Speaker 01: And so the focus should be on those sets of victims like HT that were brought in who did not know that their means of identification were being used to prescribe fraudulent prescriptions and then being, you know, carried out by the pharmacy. [00:21:36] Speaker 01: So with respect to that aspect of the scheme, which should be the focus because that underlie the aggravated identity that count there, the crux of the scheme very much went to who was receiving the prescriptions as opposed to how and when. [00:21:47] Speaker 01: And Gladden is, you know, particularly on point, which we cite, there the pharmacy was using patient names and means of identification to bill for medications that never actually made it to the patients. [00:21:58] Speaker 01: In fact, the patients had no idea that their means of identification were being used for that purpose. [00:22:03] Speaker 02: Was that aspect of the conspiracy still happening when Obsefian joined the conspiracy? [00:22:09] Speaker 01: So we would contend that Mr. Obsepian was part of the conspiracy even when the means of identification was being used to bill and falsely prescribe medication. [00:22:21] Speaker 01: So if you look to the trial record, during his direct testimony, Mr. Obsepian, and this is at SCR 162 to 172, admits that he joined the clinic in early spring of 2010, and that his girlfriend and his wife [00:22:35] Speaker 01: Sorry, his sister and his wife, his sister who he admits was a co-manager, leader of the clinic with him, they were part of the clinic for years prior to that. [00:22:44] Speaker 01: And that actual billing for the victim, HT, occurred in late March of 2010 and May of 2010. [00:22:51] Speaker 01: So a reasonable juror, particularly given the inconsistent statements that Mr. Obsepian made during trial, could find that Mr. Obsepian was involved in this conspiracy involving the [00:23:02] Speaker 01: the who was receiving false prescriptions as early as early spring before. [00:23:05] Speaker 04: It seems to me like it's a potentially contested fact, right? [00:23:08] Speaker 04: Whether because he says I was sort of hanging around, but I didn't know I didn't actually start knowingly participating in the conspiracy until the summer. [00:23:17] Speaker 04: So is your argument that may be what he claims? [00:23:21] Speaker 04: What a jury, a reasonable juror could find. [00:23:23] Speaker 04: He entered earlier. [00:23:24] Speaker 01: Yes, a reasonable jury can find he entered earlier yesterday, Your Honor. [00:23:27] Speaker 01: But at the very least, he was part of the conspiracy during the first audit that happened in October 2010. [00:23:32] Speaker 03: Right. [00:23:33] Speaker 03: And that's what it is. [00:23:34] Speaker 03: So as I understand what the government's arguing is that the maintenance of the HT's ID in the file was part of the crux of the fraud because that's how they would get through the audit. [00:23:53] Speaker 03: Am I right about that? [00:23:54] Speaker 01: Yes, Your Honor. [00:23:55] Speaker 03: That would help them get through the audit. [00:23:57] Speaker 03: But I don't see, so what troubles me about that argument is that I don't see how the audit is at the crux of the fraud. [00:24:08] Speaker 03: To me, the fraud is submitting the stuff to Medicaid and getting reimbursed for a false claim. [00:24:15] Speaker 01: Your Honor, the conspiracy, that was one part of the conspiracy. [00:24:18] Speaker 01: But the conspiracy included maintaining the facade of a legitimate clinic. [00:24:22] Speaker 01: In fact, the indictment, the overt acts in the indictment actually cite conduct in relation to the audits themselves. [00:24:29] Speaker 01: Because the clinic knew that in order to conceal its fraud, in order to continue the fraud, they needed to be able to maintain the facade and contain all these patient files. [00:24:39] Speaker 01: And the best evidence of that is that the fraud continued after the October 2010 audit. [00:24:44] Speaker 02: The fraud at that point that continued was this kind of fraud that didn't involve identity theft, like you answered with Judge Sung, where the people were actually going and picking up their own name prescriptions and then handing them over. [00:24:57] Speaker 02: I don't know, why do you get to count it as the same conspiracy? [00:25:01] Speaker 01: Well, because it gave them the ability to continue that fraud, Your Honor. [00:25:05] Speaker 01: And just because the conspiracy stopped because of the surveillance and law enforcement getting involved, didn't mean that the entire premise of maintaining the files was to be able to continue the fraud, whether it be dry having people driven to the clinic under false pretenses to misuse your IDs to bill for prescriptions or... So I mean, on that theory, like paying your electric bill is also, I mean, is that part of the crux of the conspiracy to just keep the clinic open? [00:25:32] Speaker 01: Well, no, because paying the electric bill, Your Honor, would not go to, you know, the part of the deception as to who is receiving the services. [00:25:39] Speaker 01: The entire point of maintaining the files, I mean, if they just wanted to bill and take their money and leave, then there's no reason to maintain the files. [00:25:47] Speaker 01: In fact, the files would be evidence of the fraud that they probably would not want to keep in their clinics. [00:25:52] Speaker 01: But the whole purpose of maintaining the files is to conceal the fraud and be able to continue to perpetrate the fraud in the event of an audit, which is anticipated given the fact that there was a large number of prescriptions coming out of this clinic going to one specific pharmacy, which was Huntington Pharmacy. [00:26:08] Speaker 01: And so the clinic had reasons to anticipate an audit, which is why they kept the files specifically squarely in the office. [00:26:15] Speaker 01: and to allow kind of auditors to come in and if they were to come in and they can come in unannounced which is what one of the auditors testified to they would have everything ready to go [00:26:24] Speaker 01: excuse me, to be able to deceive the auditors in that context. [00:26:29] Speaker 01: So the whole idea is to keep the facade of the clinic, whether it's to perpetrate the fraud of bringing in the homeless individuals to be able to give them the, excuse me, have them agree to take the prescriptions and then they could sell it on the black market, or in the alternative, having people come under false pretenses to take their identification. [00:26:49] Speaker 04: I think it might be a little bit overbroad to say just maintaining the files is enough here to satisfy the crux element where I think there's a stronger case, but I'm still not sure, is that they also used her identity again to [00:27:08] Speaker 04: pretend to be HT in the retraction letter. [00:27:12] Speaker 04: So there was a misrepresentation, again, as to who was doing something. [00:27:16] Speaker 04: So I think that falls within the crux of what we think of as common identity theft, a common understanding of identity theft. [00:27:25] Speaker 04: There's still then a question to me of whether that [00:27:29] Speaker 04: act, use of identity theft, and the possession related to that use, whether that can count here. [00:27:38] Speaker 04: I think it could count if the predicate crime includes the entire conspiracy, including the acts that don't fall within Dubin, unless you have proof that there was continued forms of health care fraud that satisfied Dubin post [00:27:59] Speaker 04: Uh post of sepians clear entry into the conspiracy if we're limited only to [00:28:07] Speaker 04: actual acts of healthcare fraud. [00:28:12] Speaker 04: It's not clear to me that that involved misrepresentation about who's receiving the services. [00:28:18] Speaker 04: It's not clear to me that any of that happened after Ozefian entered the conspiracy. [00:28:23] Speaker 04: Is that, am I making sense? [00:28:26] Speaker 04: It's complicated because I think there are two types of healthcare fraud happening here, some of which satisfy Doomin, some of which not. [00:28:32] Speaker 04: Some of which clearly or unclearly happened [00:28:38] Speaker 04: may or may not have happened before of Sepian or after he entered the conspiracy. [00:28:44] Speaker 04: So is there any acts of healthcare fraud that clearly satisfy Dubin aside from the retraction letter that clearly post date of Sepian's entry? [00:29:00] Speaker 01: Yes, and I guess the clarification that needs to be made is that the possession of the files themselves is part of the conspiracy. [00:29:07] Speaker 01: So whether additional fraud continued after that possession, specific to the type of fraud regarding victim HT, I don't think goes to the question of whether the crux of why the possession was happening [00:29:20] Speaker 01: was to continue this notion of who was receiving the prescriptions as opposed to how or when. [00:29:25] Speaker 01: So the mere fact of maintaining these patient files to conceal the cover-up, to be able to continue in fraud in whatever form, goes to this notion that it goes to the crux of the scheme of being able to maintain it. [00:29:39] Speaker 04: I think if we disagree with you there because we think Dubin requires more, then what's your best argument for some of that activity happening [00:29:48] Speaker 04: after the summer of 2010. [00:29:53] Speaker 01: I think then we would rely, Your Honor, on the notion that the trial record does support a finding by a reasonable juror that Mr. Oseptian was part of the conspiracy from the beginning in early spring of 2010. [00:30:03] Speaker 04: That his entry was earlier. [00:30:04] Speaker 01: His entry was earlier. [00:30:06] Speaker 03: I have some sympathy for the government here because obviously you're trying to fit a pre-Dubin case into Dubin and you're caught in a [00:30:15] Speaker 03: unawares by that decision coming down. [00:30:18] Speaker 03: So that's a difficult thing to do. [00:30:22] Speaker 03: So I do have some sympathy and I'm just wondering like what implications Dubin has across the board for all the cases that have been tried for Medicare, Medicaid fraud. [00:30:37] Speaker 03: pre-dubin that are pending on appeal or that habeas proceedings are going forward. [00:30:43] Speaker 03: But that being said, suppose we disagree with you and we just decide that this sentence has to be vacated in a post-dubin world. [00:30:53] Speaker 03: Would you retry this case? [00:30:54] Speaker 03: Or have you thought about retrying this case? [00:30:58] Speaker 01: That would be a decision that our office would have to make in accordance with kind of our office policies. [00:31:03] Speaker 01: So no decision has been made as to that issue. [00:31:06] Speaker 01: But we would contend that the trial record does support the convictions under the actual innocence inquiry here, the broader standard and actual innocence notion. [00:31:17] Speaker 01: So we don't believe that even remand is necessary. [00:31:20] Speaker 03: So you're standing on the trial record and there's no additional evidence you would want to bring in? [00:31:27] Speaker 01: That would be a question for the trial team going forward, but as of now. [00:31:32] Speaker 04: Just a remand, so not a whole new trial. [00:31:34] Speaker 04: What if we were remanding for the trial court to determine the actual innocence issue? [00:31:42] Speaker 04: And if the actual innocence inquiry, I believe, does permit the court to look at new evidence introduced by either side, so they're not limited to the trial record, [00:31:54] Speaker 04: Your friend on the other side argues the government has essentially had that opportunity and waived it. [00:32:01] Speaker 04: I guess that would be the first question. [00:32:03] Speaker 04: Have you waived it or on remand do you think you would have the opportunity to introduce new evidence and is there any? [00:32:11] Speaker 01: So if this case were remanded, I think we would have the opportunity to produce new evidence. [00:32:17] Speaker 01: As to the scope of that evidence, I think it would go to whether the clinic itself intended to engage in additional fraud with respect to the type of fraud involving victim HT. [00:32:28] Speaker 01: And that would just be a matter of looking at not only a trial record, but the investigation as a whole to see if that evidence exists. [00:32:36] Speaker 01: But we would absolutely say that the government would have the opportunity to present that evidence. [00:32:40] Speaker 03: So I don't understand why you haven't, because the actual innocence, whether it's at the trial court level or in front of us, already encompasses that. [00:32:48] Speaker 03: So if you have that evidence, why haven't you raised it or shown it to us? [00:32:55] Speaker 01: Well, because our position is, Your Honor, that the trial record as itself, as currently presented, does support the convictions under both the possession theory and what we argued was the use theory as well for actual innocence. [00:33:09] Speaker 01: But even just focused on possession, given that the timeline of Mr. Osefian's involvement in the conspiracy, the fact that even the district court held that the maintenance of these patient files went to the [00:33:22] Speaker 01: the center of the conspiracy to maintain the facade of a clinic and to defraud auditors, that in itself goes to the crux of who was receiving the services in this case with respect to the fraud. [00:33:35] Speaker 02: say we don't. [00:33:36] Speaker 02: So if we don't, agree with you. [00:33:38] Speaker 02: I mean, I understand you're trying to get us to make that legal rule, and it would probably help a lot of cases if we did. [00:33:42] Speaker 02: But if we don't agree with you, then why should you have the opportunity to present more evidence that they were going to use HT's name again to get more prescriptions or something when you haven't presented that evidence to us and you haven't asked for a remand to present that evidence? [00:33:57] Speaker 02: I don't understand what your basis is for saying now that you could present more evidence on remand. [00:34:03] Speaker 01: Well, Your Honor, we'd say because the inquiry for actual innocence goes to factual innocence, not legal sufficiency. [00:34:08] Speaker 01: So given that broad standard, you know, that may give the government the ability on remand to present additional evidence, given that the purpose of actual innocence. [00:34:17] Speaker 02: But didn't you need to ask for that with us? [00:34:20] Speaker 02: I don't see anything in your brief saying we actually have more evidence here that goes to actual innocence. [00:34:25] Speaker 02: So please give us a remand to present it. [00:34:27] Speaker 02: I don't see that. [00:34:29] Speaker 01: No, Your Honor, that is not in the briefing. [00:34:31] Speaker 01: And again, that's because our position in our briefing was that the trial record was sufficient. [00:34:35] Speaker 01: So if the court finds that that somehow precludes the government from being able to present more evidence on remand, then so be it. [00:34:43] Speaker 01: But our position would be that if the purpose of actual innocence is to actually go to whether the defendant committed a crime prescribed by law, then the government should have the opportunity on remand to actually present the court with that evidence to the extent it exists. [00:34:58] Speaker 02: going to decide the crux issue ourselves it doesn't sound like you're ready to represent today that you're ready to submit more evidence to us tomorrow you don't seem to know whether there's more evidence that we should consider so we we would have to decide the crux issue on what we have now right that's correct your honor i do just have one other question and there's [00:35:19] Speaker 04: At times, references in the excerpts of the trial transcript that were provided to us to other victims of identity theft who were similarly positioned to HT. [00:35:29] Speaker 04: It's just entirely unclear to me why none of that evidence was included in our excerpts or why it got narrowed down to HT in the jury instructions and forms. [00:35:41] Speaker 04: Is your position like that? [00:35:43] Speaker 04: Are you conceding none of that would satisfy Dubin at this point and we should only be looking at HT or I guess or has any argument about the other victims been waived? [00:35:53] Speaker 01: No argument with respect to the other victims were made and so you know we would we would say that the the trial record was focused on victim HT and so that was the [00:36:02] Speaker 01: the basis there. [00:36:03] Speaker 01: So we would say that the court should focus on HD in particular. [00:36:07] Speaker 01: Again, if the court accepts the broader actual innocence inquiry that focuses just on the charging document and the trial record, then there may be an opportunity to look through the trial record to see what else there are with respect to other victims. [00:36:20] Speaker 04: Do you agree you had an opportunity to make that argument? [00:36:22] Speaker 04: Yes, Your Honor. [00:36:24] Speaker 04: Okay. [00:36:25] Speaker 04: And then can you just point what you think is the best evidence of an earlier entry by Osepian? [00:36:34] Speaker 01: Yes, Your Honor. [00:36:34] Speaker 01: So in the trial record at SCR 162 to 172, that is the timeline that Mr. Osepian sets forth regarding his involvement with the clinic. [00:36:45] Speaker 04: His own testimony. [00:36:46] Speaker 01: His own testimony. [00:36:47] Speaker 01: And there he says clearly that he became involved in the clinic in early spring of 2010. [00:36:54] Speaker 01: He admits later on that he was a manager of the clinic with his sister. [00:36:57] Speaker 01: And his sister and his wife were both involved with the clinic years earlier, 2005, 2007. [00:37:04] Speaker 01: Given those facts and the fact that Mr. Obseppian admitted that he was a manager of the clinic, his involvement in the early spring of 2010 could leave a reasonable juror could find [00:37:15] Speaker 01: that that means that he was involved with the conspiracy at that point. [00:37:18] Speaker 01: And HT's billing actually took place in, again, late March of 2010 and May of 2010 as well. [00:37:24] Speaker 03: Thank you, counsel. [00:37:24] Speaker 03: You have doubled your time. [00:37:27] Speaker 01: Thank you, your honor. [00:37:28] Speaker 01: OK, thank you. [00:37:28] Speaker 03: We appreciate it. [00:37:29] Speaker 03: I'll give opposing counsel one minute or so for this. [00:37:39] Speaker 00: On these last factual points, I believe in his testimony the early spring was May of 2010 that he entered. [00:37:48] Speaker 00: And I think that was consistent with both the pole camera surveillance and the other surveillance that was conducted and the cooperating witnesses testimony that his. [00:37:58] Speaker 04: Can you give us sites for that? [00:37:59] Speaker 00: I don't have them right now, but I will submit a 28J with those sites. [00:38:06] Speaker 00: Just on a broader, Judge Warlow, you had asked the question, and I agree, it's a little difficult for the government coming in trying to defend a pre-dubbing case post-dubbing. [00:38:16] Speaker 00: The one thing I would say, and so it is hard on the government, but these are cases now, and you're asking what's happening with other cases. [00:38:23] Speaker 00: I mean, these are cases where we're talking about an extra two years. [00:38:27] Speaker 00: So Mr. Oseppian has already served 10, which is far more than anybody else served in this case. [00:38:32] Speaker 00: And so in most of these cases, the defendants already have gotten a big chunk of time on the underlying case. [00:38:39] Speaker 00: And it's really just a question, should they get the extra two years? [00:38:42] Speaker 00: So even though it's difficult on the government, they're not losing that much. [00:38:45] Speaker 00: They're just losing a tail to the original sentence. [00:38:49] Speaker 00: And what we've tried to do in a lot of cases is we've tried to settle them. [00:38:53] Speaker 00: Some we've been more successful than others. [00:38:55] Speaker 00: Obviously, I was not successful here. [00:38:57] Speaker 00: But I don't think it's going to, if the court were to [00:39:01] Speaker 00: you know, give us a favorable dubin ruling or really limit what the crux means that it's gonna, you know, be a parade of horribles for the government. [00:39:08] Speaker 00: It's not gonna have that big of effect. [00:39:10] Speaker 00: There are only a few cases in the pipeline. [00:39:12] Speaker 00: Some are being settled, some aren't, but it's not gonna be a major blow to the government. [00:39:17] Speaker 03: All right. [00:39:17] Speaker 03: Thank you, counsel. [00:39:18] Speaker 03: Okay, U.S. [00:39:19] Speaker 03: versus Osepian is submitted.