Legal Case Summary

May I please the court? I'm Paul Harris, I along with Robert McCoy represent the appellant Allen G. Salud. This criminal appeal arises from a 32-count, second superseding indictment, returned eight calendar days before trial, and alleging various criminal acts relating to health care, taxes, bankruptcy, and identity theft. The appellant was a doctor of osteopathic medicine and began practicing in 1983 in the Clarksburg, West Virginia region. On August 11th of 2005, he entered into a voluntary settlement agreement with the federal government. It was a negotiated settlement wherein he was represented by a former United States attorney. He signed the agreement as well as his counsel. He had admitted no liability, but tendered the sum of approximately $300,000 to the federal government, and voluntarily excluded himself from the federal health care programs, including Medicare and Medicaid. The language of the agreement focused on a prohibition by Dr. Salud from furnishing, ordering, or prescribing any services, or anyone doing that, billing for his services that he furnishes, orders, or prescribes relating to Medicare and Medicaid. After the execution of the agreement, he then split his dermatology practice. The agreement did not prohibit this. He sold part of his practice, the Medicare Medicaid part, to his colleague, Dr. Fred Scott, and because they were colleagues, they did not use lawyers, and they entered into a simple contract. So, that one paragraph, two cents contract, or a million and a half dollars for the sale? Very, very simple, no different than really a handshake deal, which lay people do all the time. He said that in the distance, Mr. Scott testified, he could never own the entity, and didn't remember signing any of them. You're right, Judge Duncan, that's what he testified to, however, all of the tax returns that he signed, and it was undisputed, that he signed for Central West Virginia under oath, said that the K-1, he was a hundred percent shareholder of the company, and moreover, documents that he signed under oath that he submitted to the West Virginia Board of Osteopathic Medicine show that he was president and 100 percent owner of Central West Virginia dermatology. And so, the clear written evidence, it completely impeaches Dr. Scott with respect to his bold statement that he didn't own these entities, moreover, on his personal returns

. He took the information from the Central West Virginia dermatology tax return, the K-1 information, put it on his own personal tax return. To keep from being indicted and also to avoid civil liability in a case that the bankruptcy trustee had brought against him and Dr. Saoud and others. Dr. Saoud then continued to practice shortly under the existing entity, AGSing. There was no evidence in the case that he ever built, or furnished, ordered, or built any services to Medicare and Medicaid, inconsistent with his agreement. When the insurance carriers, as they do, determined that Dr. Saoud had been debarred from Medicare Medicaid, they chose to no longer be involved with him and to provide reimbursement. That being the case, he then sold the remnants of his practice, AGSing, to a colleague who was a nurse practitioner by the name of Georgia Daniel, who was also a person who signed all of the tax returns related to AGSing. Indeed, Judge. Indeed, in fact, these people practiced in this medical practice for a number of years did very well economically, and in fact, all of the numbers showed that we have never seen them contract. Would anyone agree to pay someone a million dollars that was a couple of sentences in a paragraph? Judge, it's been my experience probably yours that people can help. No, you know, I'm just wondering, I don't want to say this as you need to West Virginia, but I mean that yes. I think it says something about... I've seen it here. I think it says something about Drs. Judge, at least in West Virginia, perhaps

... Well, I don't know if it wasn't even a doctor. It's Miss Daniels, and she was a nurse practitioner, Judge, but the idea was she would take that entity and flip it to an LLC, nurse practitioner LLC, which was she was perfectly allowed to do. She got all of the money from AGSing. We showed it trial. Her tax returns zoomed up with respect to income, hence her motivation for taking AGSing. But, Mr. Harris, I'm sure he heard that argument and they saw the tax returns and the report they freed to decide has a matter of credibility that those transactions were shamed. Judge, you're correct. We have a tremendous hurdle to overcome with respect to the sufficiency of evidence argument related to those issues. But we believe that coupled with the plain language of this settlement agreement from 2005 shows that all of the documents overwhelmingly show that Dr. Saoud did not commit healthcare fraud. We recognize it's an enormous burden to overcome. But the thrust really of this appeal, despite all of the many issues in the briefs, the thrust really of this appeal is the... We maintain the abuse of discretion by the trial court and refusing to grant either a severance or a continuance. After the second super citing and deep preceding indictment was returned eight days before trial

. The important thing to remember, your honors, is the indictment was returned December 4, 2012. In January, the trial court entered a scheduling order and said, this is a complex case. It was a joint motion by the parties. This is a complex case. It involves many boxes. I think the government estimated 50 banker boxes. The parties will need time to review the evidence and retain experts. So the trial was then scheduled for June 12, 2013. The important thing to remember also is in May, early May, it was May 7, of 2013, the first superseding indictment was returned. It added some language related to regulation and the 5% ownership issue. We reviewed that and in the record, the next day, we filed a pleading which was a notice which says, in light of the superseding indictment, we still want to have the trial of June 12, 2013. So there's no indication that the defense at any point in time wanted a delay. It was only until the second super exceeding indictment came out, which added nine new counts. That caused us to file our motion to sever or our motion for continuance within 70 days for the trial. And what perspective that motion and what was the evidence that you submitted in support of your claim that you needed more time to prepare specifically what additional witnesses will you inclined to interview what documents, what experts you actually present that evidence to the district court? Judge, what we did is it was a hurry up motion and brief because it was on the heels of the trial. The second superseding indictment came June 4, Dr. Soad was arraigned again on June 5, and I believe we filed our motion June 6, very, very quickly. On the eve of trial, again? Yes, because we wanted to get that issue before the court. We said we believe we need to retain an expert because this is a unique issue now

. The new health care fraud counts don't relate to what the existing counts in the indictment related to. It involves a new person. It involves a whole new theory related to the laboratory within the practices and whether that billing was done appropriately or not. Well, the question because I understood it is whether or not Dr. Sound is that correct? Yes, sure. Woundfully used Dr. Swisher's identity. You were available, you were certainly able to cross, you would have certainly been able to cross. And you had Dr. Swisher's, the invoices and the testimony that were in the record. I'm not quite sure what you would have done or what the prejudice was. And the district court found no prejudice in that subject to use of discussions. But, but Judge, that would be the case if we sat back and did not bring forward evidence in the defense to counteract each of these counts in the complaint. The record shows, for example, on the first five counts, we brought in two lawyers that were involved in those transactions to testify. We had an expert accountant, we had an expert tax lawyer for all of the other issues in the case. So the defense was was bolstered by the use of experts and to be perfectly candid, your honor. When the new counts came down as a responsible lawyer, it was our obligation to review all of the existing documents to see what is in there that can be used to cross examine the new witnesses or witness related to these issues. And we were completely unprepared with respect to that issue. We can stand up and cross examine a witness

. Anyone can do that, Judge. The key to effectively cross-examining the witness so that the client prevails is to do effective cross-examination. And in a white collar case like this, with 200,000 pieces of paper, and you're to determine what to use to cross examine the witness. The other thing is the new counts in the indictment added a whole new concept of aggravated identity theft, which carries a mandatory two-year prison sentence. That wasn't in the two previous indictments. They added a new concept of aiding and abetting under 18 USC Section 2. That wasn't in the two previous indictments. The government had no obligation to give us notice that there was going to be another indictment coming down. They don't have that obligation. But if they had, then we would have started getting prepared once we got that notice. But it's inconceivable in a case that already contains 23 counts. That eight days before trial, you add nine more counts on unique theories that didn't relate to the other issues in the case and expect counsel to be adequately prepared. We didn't have time to interview witnesses. We briefly interviewed Dr. Swisher, briefly interviewed him via telephone. Didn't even get to meet him to go over documents with him. That's all we could do. We learned shortly before trial that his wife was instrumental in preparing the Medicare application. We didn't have the chance to call her

. We're certainly not going to put a witness on that. We don't know what the plan was going to prepare for the first 23 counts. We were prepared. That shows because of the first superseding indictment. We didn't ask for a continual stand. Then we only had eight days for the last nine or the new nine counts on a theory of which we had no idea. It's easy for the government to say all of that information was in the documents that was already presented to us. We get the documents on disk. That's the way things are done these days. I started and you all started when you got the third copies. You got to take them to the office. I apologize, Judge. But you got to take the disk to your office. You got to print the thousands of pages out. You're getting these shortly before trial and you're getting new disks at trial and it's maddening. I want to make certain that I'm abundantly clear with respect to the issue of the factual difference between the new health care counts and the old health care counts. The old health care counts focused on this issue of ownership and control. The new health care counts focused on an issue of billing, which raises a whole new spectrum of how you deal with these issues. Because in the old with the old health care counts, there was no, there's no dispute

. The doctor saw who did not bill, furnish or purchase any services for any clients. Because you were forced to go to trial earlier, you went in a state of unreadiness. I hate to admit it, but it's the first time in 27 years I was not prepared. And that in and of itself implicates six amendment rights or different rights? Well, I think I think judges both. I think you have a sixth amendment right to not only counsel, but the effective assistance of counsel. So it isn't enough to just have a lawyer. The lawyer has to be adequately prepared. I think the US Supreme Court... effective at the trial. So a sort of a Tony and Chief thing for you, but at this age dealing with the six amendment right to counsel and maybe do process on the fifth amendment, you do have a high burden first in terms of the use of discretion standards, but also that you have to point to specific prejudice. And that's the key. What is specific prejudice? Is it, is it that you have, as in a little roach case that we wrote, seems sort of layout for specific prejudice. It goes through question of, there were some things you did at trial that may have been error, that resulted from this. What did you do? Well, for it didn't do that. Just really, prejudice is the benefit. Here's an absolute clear case. With respect to the new count, count 14, the aggravated identity theft

. It's abundantly clear, in our opinion, that the trial court constructed, constructively amended the indictment by including the first five counts of the health care fraud, when the indictment itself, the plain language of count 14 only dealt with Dr. Swisher and counts the new counts six through 13. That's a different claim. Did you raise that? I didn't. Oh, yeah, I raised it in the brief indirectly by saying our burden was in court before the trial court. Not before the trial court judge, but it's error per se under the holdings in this circuit, under US versus Randall, that the trial council doesn't even have to object when an instruction constructively abends the indictment. And that's the fifth amendment violation judge win with respect to that. That was a problem because and my job is to represent my client and to represent my client effectively. That's the difference between a lawyer being a professional and a person that just makes money. I was not prepared to deal with these new counts. Mr. Harris, thank you. You have some time to talk. Thank you, Judge. Mr. Compr. Thank you, Your Honor. Your May please the Court Council. My name is Andrew Cogor

. I represent the United States in this matter. Your Honor is all focused in on the arguments with respect to the motion to continue and sever the trial or the in this case, the trial of courts denial of that motion. I think Judge, when you raise the key point with respect to this issue, and that is what's the standard review and how does it apply in this case? And as the the Roach case may very clear, I think that may have been the first case that clearly articulated the standard review for a motion or denial of a motion to continue trial. It's very high, Judge. But in the other hand, you've got all these two hundred and some thousand pages of information. You've got to count the government just thinking in turn for a council to stand before us and say, this may be unread it. I'm just wondering in the scheme of things, you come and you answer what charges on to it. Why wouldn't you just agree to it? Well, Judge, it's a little extra time to prepare. I understand the court's question. I understand the defendant's position on that. And I think some context will be helpful. In context, almost all the information that was used to substantiate the new charges in the second superseding indictment, except for Dr. Swisher's interview, which occurred about a month or three weeks or so before trial started as part of the trial preparation process. Almost all of this information was already disclosed to the defendant approximately six months before trial started. Well, you had it too. And it took you quite a long time to figure out that you needed to allege over submit additional charges. And then just that they needed some additional time to respond. As a good point, Judge Diaz. And I'll just add that with respect to the key, the load start of that, what was the catalyst to the new charges? Was the actual interview of Dr

. Swisher himself? Because basically what we had in discovery was we had billings that were issued from the practice that the defendant was involved in, central West Virginia dermatology. Those billings that the relevant ones showed that Dr. Frank Swisher provided certain pathological services. So we saw this at the outset of our review of the discovery very early on. We assumed that from other documentation again within that same initial disclosure, we assumed that the that Dr. Swisher actually provided those services. As we went forward to trial, we wanted to talk to Dr. Swisher because he's one of the few doctors that was associated with the practice before it closed down. And we thought he might be called by the defense. So we reached out to him and asked him about the billings. He advised us for the first time that he didn't provide those services that he was merely the lab director. And it was just that simple fact and and and can't only does the facts relating to this issue are very simple. And that's what the district court found as well. But it was just that simple fact that turned that turned on the the actual need for a prompted the government to seek secreceding charges on that issue. So at bottom, that's one thing that that was persuasive to this record. That's one thing that the district court considered. And and that and that is something that belies the claim that that an expert was needed or more time was needed to sift through these thousands of more pages of documents. So that one change in the facts was the catalyst for foundation for all of accounts of the super seemingly dice. Yes, Your Honor. Yes, Your Honor. The the there there was basically two categories of of charges that were in the new second superseding indictment. There was a health care for our counts. And that related to I believe seven or eight separate billings. But in in in materiality, they're all the same types of things. If you saw one, you'd seen them all. And they all had Dr. Swisher as the provider of the services. When in fact, he had not provided that service. And then the the other count, the other category was the aggravated identity theft charge was related to the unlawful transfer of Dr. Swisher's identity without his knowledge to build those. How many additional documents were presented to the defense after the superseding indictment? Well, I can't quantify exactly, but I will say this. There was very few of them that related to the new charges. Well, I don't think that. I mean, that they're new. They're new and each and time to sit through them. His point is in order to be effective, he need a time to be able to sit through these additional documents, determine whether or not witnesses needed to be interviewed and recalled and whether or not to retain an expert witness. And that's often tough to do on the eve of trial when you're intundated with documents and non additional counts. I understand, Judge, the the evidence, though, would have been disclosed to discovery would have been disclosed irrespective of the second superseding indictment

. Yes, Your Honor. The the there there was basically two categories of of charges that were in the new second superseding indictment. There was a health care for our counts. And that related to I believe seven or eight separate billings. But in in in materiality, they're all the same types of things. If you saw one, you'd seen them all. And they all had Dr. Swisher as the provider of the services. When in fact, he had not provided that service. And then the the other count, the other category was the aggravated identity theft charge was related to the unlawful transfer of Dr. Swisher's identity without his knowledge to build those. How many additional documents were presented to the defense after the superseding indictment? Well, I can't quantify exactly, but I will say this. There was very few of them that related to the new charges. Well, I don't think that. I mean, that they're new. They're new and each and time to sit through them. His point is in order to be effective, he need a time to be able to sit through these additional documents, determine whether or not witnesses needed to be interviewed and recalled and whether or not to retain an expert witness. And that's often tough to do on the eve of trial when you're intundated with documents and non additional counts. I understand, Judge, the the evidence, though, would have been disclosed to discovery would have been disclosed irrespective of the second superseding indictment. So that claim could have been law as with respect to the information. So what was the why was there a proof method of disclosure? They were it was supplementless disclosures. There's been no allegations of any discovery violations in this case. We received we did citrousapinas for documents which came in much later than expected. And as we got it, we turned it over. And with respect to the discovery, I think it's important. I want to I like to have a dovetail back into the standard review argument because I think it's relevant to that. And as the specific prejudice, because notwithstanding all of the the conclusion allegations of well, we did not have enough time to review these documents. And yes, we were we were flooded with documents before trial or during trial. And I think that I would also refute the categorization that there was all there was thousands of documents or pages of documents provided just before or during trial. But be that as it may. Well, in terms of the review, the next counterpoint, I'm trying to understand it, it looks to me it sort of creates almost a harmless error type standard. It says, you know, even if there were some problems here, you got to show specific presence. And it shows specific praises, you got to point to specific errors and trial that the effect of trial so much that it would affect the outcome from the jurist perspective. That's a pretty high bar from the beginning starting with that. I mean, you've got a case of all the things you mentioned and one that aggravated identity that doesn't seem to tie in the bankruptcy of much of anything else. It seems like to me that might have been a good basis to give some more time because it's sort of different from the rest of them. But then the last, if you know, I'm sort of dealing with this whole business of counsel is representing unredness. The fact that you've got this, all this information is there

. So that claim could have been law as with respect to the information. So what was the why was there a proof method of disclosure? They were it was supplementless disclosures. There's been no allegations of any discovery violations in this case. We received we did citrousapinas for documents which came in much later than expected. And as we got it, we turned it over. And with respect to the discovery, I think it's important. I want to I like to have a dovetail back into the standard review argument because I think it's relevant to that. And as the specific prejudice, because notwithstanding all of the the conclusion allegations of well, we did not have enough time to review these documents. And yes, we were we were flooded with documents before trial or during trial. And I think that I would also refute the categorization that there was all there was thousands of documents or pages of documents provided just before or during trial. But be that as it may. Well, in terms of the review, the next counterpoint, I'm trying to understand it, it looks to me it sort of creates almost a harmless error type standard. It says, you know, even if there were some problems here, you got to show specific presence. And it shows specific praises, you got to point to specific errors and trial that the effect of trial so much that it would affect the outcome from the jurist perspective. That's a pretty high bar from the beginning starting with that. I mean, you've got a case of all the things you mentioned and one that aggravated identity that doesn't seem to tie in the bankruptcy of much of anything else. It seems like to me that might have been a good basis to give some more time because it's sort of different from the rest of them. But then the last, if you know, I'm sort of dealing with this whole business of counsel is representing unredness. The fact that you've got this, all this information is there. And yet, if this is our review, and this is the full circuit case that says that, you know, everything we just said doesn't mean anything. All you got to do is just go to the trial and tell me what happened in here. Maybe you should have had more time. But once the trial is over, you need a pretty good job that little short time. So show me what happened that specifically didn't do it. Now, I'll pose a count to get a point when I brought that up. You pointed it the one thing when you dressed it. Certainly. And I believe that dealt with the trial court's jury's right. You should say at least one. Correct. But with respect to the identifiable error we'll say, or oversight or problem that in retrospect, defense counsel had with what happened in view of the new charges and in view of the new discovery. I understand that he's pointing to in response to that question, the trial court's instruction with respect to the aggravated identity. Based on my review of the record, I could not find any objections that obstruction or that instruction during the charge conference number one. I may have missed it, but based on my review of the record, I could not find it. Secondly, the instruction was correct. If the court looks at the indictment itself with respect to the aggravated identity of charge, the opening paragraph of that charge. If you had more time to appear, he'd have known to object. Well, that was a week in the trial judge

. And yet, if this is our review, and this is the full circuit case that says that, you know, everything we just said doesn't mean anything. All you got to do is just go to the trial and tell me what happened in here. Maybe you should have had more time. But once the trial is over, you need a pretty good job that little short time. So show me what happened that specifically didn't do it. Now, I'll pose a count to get a point when I brought that up. You pointed it the one thing when you dressed it. Certainly. And I believe that dealt with the trial court's jury's right. You should say at least one. Correct. But with respect to the identifiable error we'll say, or oversight or problem that in retrospect, defense counsel had with what happened in view of the new charges and in view of the new discovery. I understand that he's pointing to in response to that question, the trial court's instruction with respect to the aggravated identity. Based on my review of the record, I could not find any objections that obstruction or that instruction during the charge conference number one. I may have missed it, but based on my review of the record, I could not find it. Secondly, the instruction was correct. If the court looks at the indictment itself with respect to the aggravated identity of charge, the opening paragraph of that charge. If you had more time to appear, he'd have known to object. Well, that was a week in the trial judge. So I don't know if that excuse holds. But in any event, if you look at the actual charge in the second super-seating indictment with respect to the aggravated identity of the opening paragraph of that charge incorporates the previous paragraphs of the indictment, which incorporates both sets of the healthcare fraud charges, both the original set, which was again incorporated in the jury instruction. And also the set that was included in the second super-seating indictment as well. Not as I understood that he was upset because all the inclusion of all and the jury instruction was incorrect because he referenced all 13 counts. It referenced identity theft with respect to all 13 counts and it only related to seven. Not that it was incorrect, but that it was only implicated. A subset of the counts. Right. And the government would respond that to the contrary, the aggravated identity theft charge related to all of the healthcare fraud charges. And as much as it showed a couple things, first of all, the pathology lab income that was at the heart of the new charges. And also, and was also part of the old charges as well. It was cited in the original indictment with respect to the scheme and as much as the defendant unlawfully obtained pathology lab profits. There was a lot of evidence in trial from an assortment of witnesses with respect to the defendant's interest in continuing income from the pathology lab. And in context of the broader scheme, that's the reason why the defendant went to Dr. Swisher to begin with to solicit his help, so to speak, to be the lab to have that lab director in place. And then he in turn got his provider number and used it to to bill without Dr. Swisher's knowledge. So the other aspect of the aggravated identity theft charge that applies to the totality of the healthcare charges in the case, including the original healthcare fraud charges, is the idea that the defendant was not supposed to be involved at all with central West Virginia dermatology. This case is not about the defendants abiding by the language of the exclusion agreement per se

. So I don't know if that excuse holds. But in any event, if you look at the actual charge in the second super-seating indictment with respect to the aggravated identity of the opening paragraph of that charge incorporates the previous paragraphs of the indictment, which incorporates both sets of the healthcare fraud charges, both the original set, which was again incorporated in the jury instruction. And also the set that was included in the second super-seating indictment as well. Not as I understood that he was upset because all the inclusion of all and the jury instruction was incorrect because he referenced all 13 counts. It referenced identity theft with respect to all 13 counts and it only related to seven. Not that it was incorrect, but that it was only implicated. A subset of the counts. Right. And the government would respond that to the contrary, the aggravated identity theft charge related to all of the healthcare fraud charges. And as much as it showed a couple things, first of all, the pathology lab income that was at the heart of the new charges. And also, and was also part of the old charges as well. It was cited in the original indictment with respect to the scheme and as much as the defendant unlawfully obtained pathology lab profits. There was a lot of evidence in trial from an assortment of witnesses with respect to the defendant's interest in continuing income from the pathology lab. And in context of the broader scheme, that's the reason why the defendant went to Dr. Swisher to begin with to solicit his help, so to speak, to be the lab to have that lab director in place. And then he in turn got his provider number and used it to to bill without Dr. Swisher's knowledge. So the other aspect of the aggravated identity theft charge that applies to the totality of the healthcare charges in the case, including the original healthcare fraud charges, is the idea that the defendant was not supposed to be involved at all with central West Virginia dermatology. This case is not about the defendants abiding by the language of the exclusion agreement per se. It's also about his circumvention of that exclusion agreement with respect to the control and ownership restrictions of that practice and ADS, the other practice that issue. So when the defendant goes to Dr. Swisher and solicits him to be the lab director for central West Virginia dermatology, that's evidence that he's in fact more involved with that practice than he should be under federal law. So there is a substantial connection and intertwining of all those charges. But with respect to the standard of view though, overarching all of this, Judge Wynne's point is well taken. That the specific prejudice prong of the analysis, and I'll just note as well that there are two prong to the standard of view. There's first the abuse of discretion, and there's secondly the specific prejudice. As to the first prong, it's more of a contemporaneous analysis. It's what the court observed and what the court was presented with at the time that she made that decision. And on that score, the district court, as it was noted earlier, asked pointedly, where is the where is the undue prejudice here? And defense counsel failed to identify anything specifically to that score. The thrust of the argument at that point was I did not have enough time to prepare. I did not have enough time to review all the documents. But as the lyruch, the roach case points out that's not enough. You have to go for specific prejudice, which is the next prong. I'll get to in a minute. There has to be more than that. But if you look at just the first prong and the abuse of discretion standard, and you look at the court's analysis, the district court's approach will say to the issue. The district court heard out counsel on this issue, and again found that there was not prejudice before going to trial, but there's also the matter of the post trial motions, in which having the benefit of going through the trial proceedings, both from the defense standpoint and also from the court's perspective. The court again found that a new trial was not appropriate and denied the post trial motion to that end, finding that again, there was no prejudice and that the motion to continue was properly denied because the new charges related to the old charges in the original indictment, they occurred during the same time frame as the originally charged conduct

. It's also about his circumvention of that exclusion agreement with respect to the control and ownership restrictions of that practice and ADS, the other practice that issue. So when the defendant goes to Dr. Swisher and solicits him to be the lab director for central West Virginia dermatology, that's evidence that he's in fact more involved with that practice than he should be under federal law. So there is a substantial connection and intertwining of all those charges. But with respect to the standard of view though, overarching all of this, Judge Wynne's point is well taken. That the specific prejudice prong of the analysis, and I'll just note as well that there are two prong to the standard of view. There's first the abuse of discretion, and there's secondly the specific prejudice. As to the first prong, it's more of a contemporaneous analysis. It's what the court observed and what the court was presented with at the time that she made that decision. And on that score, the district court, as it was noted earlier, asked pointedly, where is the where is the undue prejudice here? And defense counsel failed to identify anything specifically to that score. The thrust of the argument at that point was I did not have enough time to prepare. I did not have enough time to review all the documents. But as the lyruch, the roach case points out that's not enough. You have to go for specific prejudice, which is the next prong. I'll get to in a minute. There has to be more than that. But if you look at just the first prong and the abuse of discretion standard, and you look at the court's analysis, the district court's approach will say to the issue. The district court heard out counsel on this issue, and again found that there was not prejudice before going to trial, but there's also the matter of the post trial motions, in which having the benefit of going through the trial proceedings, both from the defense standpoint and also from the court's perspective. The court again found that a new trial was not appropriate and denied the post trial motion to that end, finding that again, there was no prejudice and that the motion to continue was properly denied because the new charges related to the old charges in the original indictment, they occurred during the same time frame as the originally charged conduct. They didn't present any complicated issues and they didn't require an expert witness. This is from again the trial court that observed all the evidence of trial and considered the arguments of counsel on the issue. And another point on this issue, which I think is important because it's undisputed in this case, is that irrespective of the challenges that the defense counsel claims to have had with respect to getting up to speak on these new charges, defense counsel has at no point challenged the admissibility, the underlying admissibility of all of the evidence that was used to support the new charges in the second superseding indictment. What's the volume of documentation, the 200,000 documents that the defendant refers to? It was it some set of that that related to the new count time, a little on the clear about what that number is with respect to the new counts that were the second superseding. It was, it was an identifiable subset which the government tried to make clear to the defense immediately after the second superseding indictment. But did I understand your answer to change E and she gave quantify that? No, but what I can do is I can quantify the number of pages with respect to the exhibits that were actually admitted to trial by the government. I think that's also helpful for purposes of context because you see that with respect to the second superseding indictment, the government admitted of its set of approximately 79 exhibits, approximately just six of those related to the new charges of those six exhibits. Four of them were in were disclosed six months before trial in the initial disclosures. Two of them were based on the new evidence that was obtained following the revelation by Dr. Swisher. Those two exhibits that were not previously disclosed to counsel were disclosed approximately a week to two weeks before trial. And of those two exhibits, one was a summary chart that was one page long. The other one was an exhibit of 88 pages, I believe, of checks that were written to Dr. Swisher and once you've seen and that were deposited by the medical practice as part of the billing. It was that was what the what how the the billing agencies. So Dr. Soh knew what you were going, what you thought was relevant and important but counsel's argument is that it was there right to drop yourself, what else in that larger subset of documents might have been relevant and important to their defense. Correct, Ronner. And I think that's what speaks to the next prong of the standard review and that's the specific prejudice because the specific prejudice prong, unlike the abusive discretion prong, is more retrospective in its analysis

. They didn't present any complicated issues and they didn't require an expert witness. This is from again the trial court that observed all the evidence of trial and considered the arguments of counsel on the issue. And another point on this issue, which I think is important because it's undisputed in this case, is that irrespective of the challenges that the defense counsel claims to have had with respect to getting up to speak on these new charges, defense counsel has at no point challenged the admissibility, the underlying admissibility of all of the evidence that was used to support the new charges in the second superseding indictment. What's the volume of documentation, the 200,000 documents that the defendant refers to? It was it some set of that that related to the new count time, a little on the clear about what that number is with respect to the new counts that were the second superseding. It was, it was an identifiable subset which the government tried to make clear to the defense immediately after the second superseding indictment. But did I understand your answer to change E and she gave quantify that? No, but what I can do is I can quantify the number of pages with respect to the exhibits that were actually admitted to trial by the government. I think that's also helpful for purposes of context because you see that with respect to the second superseding indictment, the government admitted of its set of approximately 79 exhibits, approximately just six of those related to the new charges of those six exhibits. Four of them were in were disclosed six months before trial in the initial disclosures. Two of them were based on the new evidence that was obtained following the revelation by Dr. Swisher. Those two exhibits that were not previously disclosed to counsel were disclosed approximately a week to two weeks before trial. And of those two exhibits, one was a summary chart that was one page long. The other one was an exhibit of 88 pages, I believe, of checks that were written to Dr. Swisher and once you've seen and that were deposited by the medical practice as part of the billing. It was that was what the what how the the billing agencies. So Dr. Soh knew what you were going, what you thought was relevant and important but counsel's argument is that it was there right to drop yourself, what else in that larger subset of documents might have been relevant and important to their defense. Correct, Ronner. And I think that's what speaks to the next prong of the standard review and that's the specific prejudice because the specific prejudice prong, unlike the abusive discretion prong, is more retrospective in its analysis. In this prong, it traps the strictly-be-wash and ineffective assistance counsel analysis as it relates to the prejudice prong of that analysis. And in that analysis, as it relates to this case, it's asking the question, the key question is, was there an oversight and error a mistake by counsel as a result of proceeding to trial, which tended to undermine the confidence in the outcome? Oh, it wasn't Dr. Soh who convicted on the majority of these counsels to proceed in the indictment. Yes, you're on. He was convicted on all the health care fraud counts, including the original ones. In addition to several of the bankruptcy fraud counts on one of the tax counts and also the aggregate of that account. He was acquitted on some. He was acquitted on some of the bankruptcy fraud counts. There was all the original indictment, right? Yes, you're on. Okay, doesn't that suggest it? I have a minute difference. Well, that in itself does not meet the burden under the loruch standard. The counsel has the point to, especially given the benefit of a year, a year and a half now that we had trial, counsel has the point to a specific oversight error that could have changed the result. Not the fact that the result itself was not to his liking. Not the fact that he would have liked more time. That's not the standard. Not the fact that he had a lot of work to do, more work to do, leading up to trial. That's not the standard. The loruch case does a great job of outlining what specific prejudice means and what it what it what what what what defense is required. Really having this case

. In this prong, it traps the strictly-be-wash and ineffective assistance counsel analysis as it relates to the prejudice prong of that analysis. And in that analysis, as it relates to this case, it's asking the question, the key question is, was there an oversight and error a mistake by counsel as a result of proceeding to trial, which tended to undermine the confidence in the outcome? Oh, it wasn't Dr. Soh who convicted on the majority of these counsels to proceed in the indictment. Yes, you're on. He was convicted on all the health care fraud counts, including the original ones. In addition to several of the bankruptcy fraud counts on one of the tax counts and also the aggregate of that account. He was acquitted on some. He was acquitted on some of the bankruptcy fraud counts. There was all the original indictment, right? Yes, you're on. Okay, doesn't that suggest it? I have a minute difference. Well, that in itself does not meet the burden under the loruch standard. The counsel has the point to, especially given the benefit of a year, a year and a half now that we had trial, counsel has the point to a specific oversight error that could have changed the result. Not the fact that the result itself was not to his liking. Not the fact that he would have liked more time. That's not the standard. Not the fact that he had a lot of work to do, more work to do, leading up to trial. That's not the standard. The loruch case does a great job of outlining what specific prejudice means and what it what it what what what what defense is required. Really having this case. It evidence the way in which these cases are presented. We talked about ineffectiveness and surely not talking about ineffectiveness. That's born in the fact that the counsel is not doing the dirty job. The counsel's the way to hear it is ineffectiveness because I was put in a position where that's the best that could be done. I was put there because I wasn't ready. The court forced me to go which rendered my services ineffective but I would have been effective had you given me more time. It kind of puts in a different being than this trickling type of analysis of ineffectiveness. It's interesting as I'm listening what's going on here with you right. I think that the loruch case cabins this thing in a way it's almost you start with even if there is an abuse of discretion you could almost do like you do in the cases didn't even fall about a minute. Just go that second problem and just deal with it. I don't know how you overcome it unless you can show something specific there in that record. It seems to be pretty pretty pretty pretty specific. I agree judge in other words you'd have to say okay now that that we've had a chance to look at the documents that we didn't have a chance to thoroughly review before trial. We found this document that would have been exculptor or that would have significantly changed the dynamic of the cross-examination of Dr. Swisher for example. That's never been presented at any point even to this day. So without that there can't be specific prejudice. And for that reason the government would contend that under both prongs the abuse of discretion the court did not arbitrarily proceed on the trial and that the defendant has failed to establish any specific prejudice in the case and for that reason the other reason not brief we would ask the court to affirm a law report. Thank you Mr

. It evidence the way in which these cases are presented. We talked about ineffectiveness and surely not talking about ineffectiveness. That's born in the fact that the counsel is not doing the dirty job. The counsel's the way to hear it is ineffectiveness because I was put in a position where that's the best that could be done. I was put there because I wasn't ready. The court forced me to go which rendered my services ineffective but I would have been effective had you given me more time. It kind of puts in a different being than this trickling type of analysis of ineffectiveness. It's interesting as I'm listening what's going on here with you right. I think that the loruch case cabins this thing in a way it's almost you start with even if there is an abuse of discretion you could almost do like you do in the cases didn't even fall about a minute. Just go that second problem and just deal with it. I don't know how you overcome it unless you can show something specific there in that record. It seems to be pretty pretty pretty pretty specific. I agree judge in other words you'd have to say okay now that that we've had a chance to look at the documents that we didn't have a chance to thoroughly review before trial. We found this document that would have been exculptor or that would have significantly changed the dynamic of the cross-examination of Dr. Swisher for example. That's never been presented at any point even to this day. So without that there can't be specific prejudice. And for that reason the government would contend that under both prongs the abuse of discretion the court did not arbitrarily proceed on the trial and that the defendant has failed to establish any specific prejudice in the case and for that reason the other reason not brief we would ask the court to affirm a law report. Thank you Mr. Harris you resource the time for the bottle. Thank you, your honor. We did not expect a perfect trial. We don't think we're entitled to have a perfect trial but we are entitled to have a fair trial and one of the hallmarks of having a fair trial is the ability to access witnesses to bring them to court to have them testify on your behalf and counts eight through 13 of the second superseding indictment the new counts. There are individuals listed by initial initial only after that time the government said these are the names of the people we had no way of contacting them or locating them there were no addresses no phone and we're not saying the government did that intentionally but it became part of the problem when the court didn't grant a continuance within 70 days when we had never asked for a continuance before there was reference in the new counts to Kaiser Permanente healthcare right and the issue was what was the propriety of submitting these documents for reimbursement when Dr. Swisher was deemed to be the quote administrator of the lab and didn't see the patients well we had no way of contacting Kaiser Permanente with respect to those specific documents in the new count that for them would have been looking for a needle in the haystack but that could have been exculpatory to say this is done all the time an administrator of a lab doesn't have to see patients as long as a healthcare professional sees the patient and doesn't upcode and doesn't phantom bill what prevent you from doing some of this post trial? Well by then the trial is over and you have to deal with the very difficult issues of sentencing and dealing with the client and his family you know Dr. Sode was a professional the newspaper the TV was there every day during the trial this was a big deal and those sorts of things cannot be discounted and so were the case that we were with a huge firm we would be able to scour the countryside to try and find this information now but from a practical standpoint you have to prioritize once the guilty verdict comes in and we think that we preserve this issue of not having sufficient time we think that the court should look to the US versus Rojas Contreras case in Justice Blackman's concurrence where he says specifically in the event of additional charges a defendant may well need additional preparation time we have that here the constitution or right to assistance of council is rendered meaningless if a defendant is forced to trial in the absence of time to prepare we weren't even asking for the court to put off the trial with respect to the original counts we were ready to go on those it's these new counts which we believe deprived us of a fair trial not a perfect trial we're not entitled to that but a fair trial and the other thing is with respect to Dr. Swisher he was identified as a witness on May 29th five days before the second superseding indictment came out he along with hundreds of other people his name is contained in those hundreds of thousands of pieces of paper there was no way for us to know that up until May 29th of 2013 that Dr. Swisher had anything in the world to do with this case whatsoever and all we could get was a telephone interview and not show him documents because we hadn't seen him yet and finally it's a bit disingenuous to say we already had the documents relating to Dr. Swisher first of all we didn't because we kept getting discs there's a way for us to quantify the number of pages if we go back and we can do that and if the court wants to submit a supplemental briefcase related to that but the point is we can't figure out as we're preparing for trial which pages are going to relate to an indictment on counts that hasn't even happened it's difficult enough to predict a witness as testimony if you can't or oftentimes don't have the ability to interview the witness beforehand but it's the lawyers job to to get prepared an interview and find every witness that could possibly support the defense and in these cases it isn't when you defend them as I know your honors know the government has to prove beyond the reasonable doubt each and every element of the crime alleged and so sometimes getting an acquittal on one count like the tat one of the tax counts related to focusing just on one piece of paper or one element of the crime within the confines of the indictment we couldn't do that with the new indictment so your honors I'm grateful that you're hearing us and we appreciate the time and we ask that this case be reversed and that we have the opportunity just as we got an acquittal on 10 counts from the original indictment that we have the opportunity to properly prepare and try these remaining counts thank you thank you very much Mr. Harris I would ask the courtroom deputy to adjourn court sent signed eye and then we will come down and council and we will briefly conference these cases and if there's any time when an in before lunch and there are students around who would like to ask us questions we'd be happy to do that with the understanding that of course we cannot discuss the cases that we heard this morning thank you

May I please the court? I'm Paul Harris, I along with Robert McCoy represent the appellant Allen G. Salud. This criminal appeal arises from a 32-count, second superseding indictment, returned eight calendar days before trial, and alleging various criminal acts relating to health care, taxes, bankruptcy, and identity theft. The appellant was a doctor of osteopathic medicine and began practicing in 1983 in the Clarksburg, West Virginia region. On August 11th of 2005, he entered into a voluntary settlement agreement with the federal government. It was a negotiated settlement wherein he was represented by a former United States attorney. He signed the agreement as well as his counsel. He had admitted no liability, but tendered the sum of approximately $300,000 to the federal government, and voluntarily excluded himself from the federal health care programs, including Medicare and Medicaid. The language of the agreement focused on a prohibition by Dr. Salud from furnishing, ordering, or prescribing any services, or anyone doing that, billing for his services that he furnishes, orders, or prescribes relating to Medicare and Medicaid. After the execution of the agreement, he then split his dermatology practice. The agreement did not prohibit this. He sold part of his practice, the Medicare Medicaid part, to his colleague, Dr. Fred Scott, and because they were colleagues, they did not use lawyers, and they entered into a simple contract. So, that one paragraph, two cents contract, or a million and a half dollars for the sale? Very, very simple, no different than really a handshake deal, which lay people do all the time. He said that in the distance, Mr. Scott testified, he could never own the entity, and didn't remember signing any of them. You're right, Judge Duncan, that's what he testified to, however, all of the tax returns that he signed, and it was undisputed, that he signed for Central West Virginia under oath, said that the K-1, he was a hundred percent shareholder of the company, and moreover, documents that he signed under oath that he submitted to the West Virginia Board of Osteopathic Medicine show that he was president and 100 percent owner of Central West Virginia dermatology. And so, the clear written evidence, it completely impeaches Dr. Scott with respect to his bold statement that he didn't own these entities, moreover, on his personal returns. He took the information from the Central West Virginia dermatology tax return, the K-1 information, put it on his own personal tax return. To keep from being indicted and also to avoid civil liability in a case that the bankruptcy trustee had brought against him and Dr. Saoud and others. Dr. Saoud then continued to practice shortly under the existing entity, AGSing. There was no evidence in the case that he ever built, or furnished, ordered, or built any services to Medicare and Medicaid, inconsistent with his agreement. When the insurance carriers, as they do, determined that Dr. Saoud had been debarred from Medicare Medicaid, they chose to no longer be involved with him and to provide reimbursement. That being the case, he then sold the remnants of his practice, AGSing, to a colleague who was a nurse practitioner by the name of Georgia Daniel, who was also a person who signed all of the tax returns related to AGSing. Indeed, Judge. Indeed, in fact, these people practiced in this medical practice for a number of years did very well economically, and in fact, all of the numbers showed that we have never seen them contract. Would anyone agree to pay someone a million dollars that was a couple of sentences in a paragraph? Judge, it's been my experience probably yours that people can help. No, you know, I'm just wondering, I don't want to say this as you need to West Virginia, but I mean that yes. I think it says something about... I've seen it here. I think it says something about Drs. Judge, at least in West Virginia, perhaps... Well, I don't know if it wasn't even a doctor. It's Miss Daniels, and she was a nurse practitioner, Judge, but the idea was she would take that entity and flip it to an LLC, nurse practitioner LLC, which was she was perfectly allowed to do. She got all of the money from AGSing. We showed it trial. Her tax returns zoomed up with respect to income, hence her motivation for taking AGSing. But, Mr. Harris, I'm sure he heard that argument and they saw the tax returns and the report they freed to decide has a matter of credibility that those transactions were shamed. Judge, you're correct. We have a tremendous hurdle to overcome with respect to the sufficiency of evidence argument related to those issues. But we believe that coupled with the plain language of this settlement agreement from 2005 shows that all of the documents overwhelmingly show that Dr. Saoud did not commit healthcare fraud. We recognize it's an enormous burden to overcome. But the thrust really of this appeal, despite all of the many issues in the briefs, the thrust really of this appeal is the... We maintain the abuse of discretion by the trial court and refusing to grant either a severance or a continuance. After the second super citing and deep preceding indictment was returned eight days before trial. The important thing to remember, your honors, is the indictment was returned December 4, 2012. In January, the trial court entered a scheduling order and said, this is a complex case. It was a joint motion by the parties. This is a complex case. It involves many boxes. I think the government estimated 50 banker boxes. The parties will need time to review the evidence and retain experts. So the trial was then scheduled for June 12, 2013. The important thing to remember also is in May, early May, it was May 7, of 2013, the first superseding indictment was returned. It added some language related to regulation and the 5% ownership issue. We reviewed that and in the record, the next day, we filed a pleading which was a notice which says, in light of the superseding indictment, we still want to have the trial of June 12, 2013. So there's no indication that the defense at any point in time wanted a delay. It was only until the second super exceeding indictment came out, which added nine new counts. That caused us to file our motion to sever or our motion for continuance within 70 days for the trial. And what perspective that motion and what was the evidence that you submitted in support of your claim that you needed more time to prepare specifically what additional witnesses will you inclined to interview what documents, what experts you actually present that evidence to the district court? Judge, what we did is it was a hurry up motion and brief because it was on the heels of the trial. The second superseding indictment came June 4, Dr. Soad was arraigned again on June 5, and I believe we filed our motion June 6, very, very quickly. On the eve of trial, again? Yes, because we wanted to get that issue before the court. We said we believe we need to retain an expert because this is a unique issue now. The new health care fraud counts don't relate to what the existing counts in the indictment related to. It involves a new person. It involves a whole new theory related to the laboratory within the practices and whether that billing was done appropriately or not. Well, the question because I understood it is whether or not Dr. Sound is that correct? Yes, sure. Woundfully used Dr. Swisher's identity. You were available, you were certainly able to cross, you would have certainly been able to cross. And you had Dr. Swisher's, the invoices and the testimony that were in the record. I'm not quite sure what you would have done or what the prejudice was. And the district court found no prejudice in that subject to use of discussions. But, but Judge, that would be the case if we sat back and did not bring forward evidence in the defense to counteract each of these counts in the complaint. The record shows, for example, on the first five counts, we brought in two lawyers that were involved in those transactions to testify. We had an expert accountant, we had an expert tax lawyer for all of the other issues in the case. So the defense was was bolstered by the use of experts and to be perfectly candid, your honor. When the new counts came down as a responsible lawyer, it was our obligation to review all of the existing documents to see what is in there that can be used to cross examine the new witnesses or witness related to these issues. And we were completely unprepared with respect to that issue. We can stand up and cross examine a witness. Anyone can do that, Judge. The key to effectively cross-examining the witness so that the client prevails is to do effective cross-examination. And in a white collar case like this, with 200,000 pieces of paper, and you're to determine what to use to cross examine the witness. The other thing is the new counts in the indictment added a whole new concept of aggravated identity theft, which carries a mandatory two-year prison sentence. That wasn't in the two previous indictments. They added a new concept of aiding and abetting under 18 USC Section 2. That wasn't in the two previous indictments. The government had no obligation to give us notice that there was going to be another indictment coming down. They don't have that obligation. But if they had, then we would have started getting prepared once we got that notice. But it's inconceivable in a case that already contains 23 counts. That eight days before trial, you add nine more counts on unique theories that didn't relate to the other issues in the case and expect counsel to be adequately prepared. We didn't have time to interview witnesses. We briefly interviewed Dr. Swisher, briefly interviewed him via telephone. Didn't even get to meet him to go over documents with him. That's all we could do. We learned shortly before trial that his wife was instrumental in preparing the Medicare application. We didn't have the chance to call her. We're certainly not going to put a witness on that. We don't know what the plan was going to prepare for the first 23 counts. We were prepared. That shows because of the first superseding indictment. We didn't ask for a continual stand. Then we only had eight days for the last nine or the new nine counts on a theory of which we had no idea. It's easy for the government to say all of that information was in the documents that was already presented to us. We get the documents on disk. That's the way things are done these days. I started and you all started when you got the third copies. You got to take them to the office. I apologize, Judge. But you got to take the disk to your office. You got to print the thousands of pages out. You're getting these shortly before trial and you're getting new disks at trial and it's maddening. I want to make certain that I'm abundantly clear with respect to the issue of the factual difference between the new health care counts and the old health care counts. The old health care counts focused on this issue of ownership and control. The new health care counts focused on an issue of billing, which raises a whole new spectrum of how you deal with these issues. Because in the old with the old health care counts, there was no, there's no dispute. The doctor saw who did not bill, furnish or purchase any services for any clients. Because you were forced to go to trial earlier, you went in a state of unreadiness. I hate to admit it, but it's the first time in 27 years I was not prepared. And that in and of itself implicates six amendment rights or different rights? Well, I think I think judges both. I think you have a sixth amendment right to not only counsel, but the effective assistance of counsel. So it isn't enough to just have a lawyer. The lawyer has to be adequately prepared. I think the US Supreme Court... effective at the trial. So a sort of a Tony and Chief thing for you, but at this age dealing with the six amendment right to counsel and maybe do process on the fifth amendment, you do have a high burden first in terms of the use of discretion standards, but also that you have to point to specific prejudice. And that's the key. What is specific prejudice? Is it, is it that you have, as in a little roach case that we wrote, seems sort of layout for specific prejudice. It goes through question of, there were some things you did at trial that may have been error, that resulted from this. What did you do? Well, for it didn't do that. Just really, prejudice is the benefit. Here's an absolute clear case. With respect to the new count, count 14, the aggravated identity theft. It's abundantly clear, in our opinion, that the trial court constructed, constructively amended the indictment by including the first five counts of the health care fraud, when the indictment itself, the plain language of count 14 only dealt with Dr. Swisher and counts the new counts six through 13. That's a different claim. Did you raise that? I didn't. Oh, yeah, I raised it in the brief indirectly by saying our burden was in court before the trial court. Not before the trial court judge, but it's error per se under the holdings in this circuit, under US versus Randall, that the trial council doesn't even have to object when an instruction constructively abends the indictment. And that's the fifth amendment violation judge win with respect to that. That was a problem because and my job is to represent my client and to represent my client effectively. That's the difference between a lawyer being a professional and a person that just makes money. I was not prepared to deal with these new counts. Mr. Harris, thank you. You have some time to talk. Thank you, Judge. Mr. Compr. Thank you, Your Honor. Your May please the Court Council. My name is Andrew Cogor. I represent the United States in this matter. Your Honor is all focused in on the arguments with respect to the motion to continue and sever the trial or the in this case, the trial of courts denial of that motion. I think Judge, when you raise the key point with respect to this issue, and that is what's the standard review and how does it apply in this case? And as the the Roach case may very clear, I think that may have been the first case that clearly articulated the standard review for a motion or denial of a motion to continue trial. It's very high, Judge. But in the other hand, you've got all these two hundred and some thousand pages of information. You've got to count the government just thinking in turn for a council to stand before us and say, this may be unread it. I'm just wondering in the scheme of things, you come and you answer what charges on to it. Why wouldn't you just agree to it? Well, Judge, it's a little extra time to prepare. I understand the court's question. I understand the defendant's position on that. And I think some context will be helpful. In context, almost all the information that was used to substantiate the new charges in the second superseding indictment, except for Dr. Swisher's interview, which occurred about a month or three weeks or so before trial started as part of the trial preparation process. Almost all of this information was already disclosed to the defendant approximately six months before trial started. Well, you had it too. And it took you quite a long time to figure out that you needed to allege over submit additional charges. And then just that they needed some additional time to respond. As a good point, Judge Diaz. And I'll just add that with respect to the key, the load start of that, what was the catalyst to the new charges? Was the actual interview of Dr. Swisher himself? Because basically what we had in discovery was we had billings that were issued from the practice that the defendant was involved in, central West Virginia dermatology. Those billings that the relevant ones showed that Dr. Frank Swisher provided certain pathological services. So we saw this at the outset of our review of the discovery very early on. We assumed that from other documentation again within that same initial disclosure, we assumed that the that Dr. Swisher actually provided those services. As we went forward to trial, we wanted to talk to Dr. Swisher because he's one of the few doctors that was associated with the practice before it closed down. And we thought he might be called by the defense. So we reached out to him and asked him about the billings. He advised us for the first time that he didn't provide those services that he was merely the lab director. And it was just that simple fact and and and can't only does the facts relating to this issue are very simple. And that's what the district court found as well. But it was just that simple fact that turned that turned on the the actual need for a prompted the government to seek secreceding charges on that issue. So at bottom, that's one thing that that was persuasive to this record. That's one thing that the district court considered. And and that and that is something that belies the claim that that an expert was needed or more time was needed to sift through these thousands of more pages of documents. So that one change in the facts was the catalyst for foundation for all of accounts of the super seemingly dice. Yes, Your Honor. Yes, Your Honor. The the there there was basically two categories of of charges that were in the new second superseding indictment. There was a health care for our counts. And that related to I believe seven or eight separate billings. But in in in materiality, they're all the same types of things. If you saw one, you'd seen them all. And they all had Dr. Swisher as the provider of the services. When in fact, he had not provided that service. And then the the other count, the other category was the aggravated identity theft charge was related to the unlawful transfer of Dr. Swisher's identity without his knowledge to build those. How many additional documents were presented to the defense after the superseding indictment? Well, I can't quantify exactly, but I will say this. There was very few of them that related to the new charges. Well, I don't think that. I mean, that they're new. They're new and each and time to sit through them. His point is in order to be effective, he need a time to be able to sit through these additional documents, determine whether or not witnesses needed to be interviewed and recalled and whether or not to retain an expert witness. And that's often tough to do on the eve of trial when you're intundated with documents and non additional counts. I understand, Judge, the the evidence, though, would have been disclosed to discovery would have been disclosed irrespective of the second superseding indictment. So that claim could have been law as with respect to the information. So what was the why was there a proof method of disclosure? They were it was supplementless disclosures. There's been no allegations of any discovery violations in this case. We received we did citrousapinas for documents which came in much later than expected. And as we got it, we turned it over. And with respect to the discovery, I think it's important. I want to I like to have a dovetail back into the standard review argument because I think it's relevant to that. And as the specific prejudice, because notwithstanding all of the the conclusion allegations of well, we did not have enough time to review these documents. And yes, we were we were flooded with documents before trial or during trial. And I think that I would also refute the categorization that there was all there was thousands of documents or pages of documents provided just before or during trial. But be that as it may. Well, in terms of the review, the next counterpoint, I'm trying to understand it, it looks to me it sort of creates almost a harmless error type standard. It says, you know, even if there were some problems here, you got to show specific presence. And it shows specific praises, you got to point to specific errors and trial that the effect of trial so much that it would affect the outcome from the jurist perspective. That's a pretty high bar from the beginning starting with that. I mean, you've got a case of all the things you mentioned and one that aggravated identity that doesn't seem to tie in the bankruptcy of much of anything else. It seems like to me that might have been a good basis to give some more time because it's sort of different from the rest of them. But then the last, if you know, I'm sort of dealing with this whole business of counsel is representing unredness. The fact that you've got this, all this information is there. And yet, if this is our review, and this is the full circuit case that says that, you know, everything we just said doesn't mean anything. All you got to do is just go to the trial and tell me what happened in here. Maybe you should have had more time. But once the trial is over, you need a pretty good job that little short time. So show me what happened that specifically didn't do it. Now, I'll pose a count to get a point when I brought that up. You pointed it the one thing when you dressed it. Certainly. And I believe that dealt with the trial court's jury's right. You should say at least one. Correct. But with respect to the identifiable error we'll say, or oversight or problem that in retrospect, defense counsel had with what happened in view of the new charges and in view of the new discovery. I understand that he's pointing to in response to that question, the trial court's instruction with respect to the aggravated identity. Based on my review of the record, I could not find any objections that obstruction or that instruction during the charge conference number one. I may have missed it, but based on my review of the record, I could not find it. Secondly, the instruction was correct. If the court looks at the indictment itself with respect to the aggravated identity of charge, the opening paragraph of that charge. If you had more time to appear, he'd have known to object. Well, that was a week in the trial judge. So I don't know if that excuse holds. But in any event, if you look at the actual charge in the second super-seating indictment with respect to the aggravated identity of the opening paragraph of that charge incorporates the previous paragraphs of the indictment, which incorporates both sets of the healthcare fraud charges, both the original set, which was again incorporated in the jury instruction. And also the set that was included in the second super-seating indictment as well. Not as I understood that he was upset because all the inclusion of all and the jury instruction was incorrect because he referenced all 13 counts. It referenced identity theft with respect to all 13 counts and it only related to seven. Not that it was incorrect, but that it was only implicated. A subset of the counts. Right. And the government would respond that to the contrary, the aggravated identity theft charge related to all of the healthcare fraud charges. And as much as it showed a couple things, first of all, the pathology lab income that was at the heart of the new charges. And also, and was also part of the old charges as well. It was cited in the original indictment with respect to the scheme and as much as the defendant unlawfully obtained pathology lab profits. There was a lot of evidence in trial from an assortment of witnesses with respect to the defendant's interest in continuing income from the pathology lab. And in context of the broader scheme, that's the reason why the defendant went to Dr. Swisher to begin with to solicit his help, so to speak, to be the lab to have that lab director in place. And then he in turn got his provider number and used it to to bill without Dr. Swisher's knowledge. So the other aspect of the aggravated identity theft charge that applies to the totality of the healthcare charges in the case, including the original healthcare fraud charges, is the idea that the defendant was not supposed to be involved at all with central West Virginia dermatology. This case is not about the defendants abiding by the language of the exclusion agreement per se. It's also about his circumvention of that exclusion agreement with respect to the control and ownership restrictions of that practice and ADS, the other practice that issue. So when the defendant goes to Dr. Swisher and solicits him to be the lab director for central West Virginia dermatology, that's evidence that he's in fact more involved with that practice than he should be under federal law. So there is a substantial connection and intertwining of all those charges. But with respect to the standard of view though, overarching all of this, Judge Wynne's point is well taken. That the specific prejudice prong of the analysis, and I'll just note as well that there are two prong to the standard of view. There's first the abuse of discretion, and there's secondly the specific prejudice. As to the first prong, it's more of a contemporaneous analysis. It's what the court observed and what the court was presented with at the time that she made that decision. And on that score, the district court, as it was noted earlier, asked pointedly, where is the where is the undue prejudice here? And defense counsel failed to identify anything specifically to that score. The thrust of the argument at that point was I did not have enough time to prepare. I did not have enough time to review all the documents. But as the lyruch, the roach case points out that's not enough. You have to go for specific prejudice, which is the next prong. I'll get to in a minute. There has to be more than that. But if you look at just the first prong and the abuse of discretion standard, and you look at the court's analysis, the district court's approach will say to the issue. The district court heard out counsel on this issue, and again found that there was not prejudice before going to trial, but there's also the matter of the post trial motions, in which having the benefit of going through the trial proceedings, both from the defense standpoint and also from the court's perspective. The court again found that a new trial was not appropriate and denied the post trial motion to that end, finding that again, there was no prejudice and that the motion to continue was properly denied because the new charges related to the old charges in the original indictment, they occurred during the same time frame as the originally charged conduct. They didn't present any complicated issues and they didn't require an expert witness. This is from again the trial court that observed all the evidence of trial and considered the arguments of counsel on the issue. And another point on this issue, which I think is important because it's undisputed in this case, is that irrespective of the challenges that the defense counsel claims to have had with respect to getting up to speak on these new charges, defense counsel has at no point challenged the admissibility, the underlying admissibility of all of the evidence that was used to support the new charges in the second superseding indictment. What's the volume of documentation, the 200,000 documents that the defendant refers to? It was it some set of that that related to the new count time, a little on the clear about what that number is with respect to the new counts that were the second superseding. It was, it was an identifiable subset which the government tried to make clear to the defense immediately after the second superseding indictment. But did I understand your answer to change E and she gave quantify that? No, but what I can do is I can quantify the number of pages with respect to the exhibits that were actually admitted to trial by the government. I think that's also helpful for purposes of context because you see that with respect to the second superseding indictment, the government admitted of its set of approximately 79 exhibits, approximately just six of those related to the new charges of those six exhibits. Four of them were in were disclosed six months before trial in the initial disclosures. Two of them were based on the new evidence that was obtained following the revelation by Dr. Swisher. Those two exhibits that were not previously disclosed to counsel were disclosed approximately a week to two weeks before trial. And of those two exhibits, one was a summary chart that was one page long. The other one was an exhibit of 88 pages, I believe, of checks that were written to Dr. Swisher and once you've seen and that were deposited by the medical practice as part of the billing. It was that was what the what how the the billing agencies. So Dr. Soh knew what you were going, what you thought was relevant and important but counsel's argument is that it was there right to drop yourself, what else in that larger subset of documents might have been relevant and important to their defense. Correct, Ronner. And I think that's what speaks to the next prong of the standard review and that's the specific prejudice because the specific prejudice prong, unlike the abusive discretion prong, is more retrospective in its analysis. In this prong, it traps the strictly-be-wash and ineffective assistance counsel analysis as it relates to the prejudice prong of that analysis. And in that analysis, as it relates to this case, it's asking the question, the key question is, was there an oversight and error a mistake by counsel as a result of proceeding to trial, which tended to undermine the confidence in the outcome? Oh, it wasn't Dr. Soh who convicted on the majority of these counsels to proceed in the indictment. Yes, you're on. He was convicted on all the health care fraud counts, including the original ones. In addition to several of the bankruptcy fraud counts on one of the tax counts and also the aggregate of that account. He was acquitted on some. He was acquitted on some of the bankruptcy fraud counts. There was all the original indictment, right? Yes, you're on. Okay, doesn't that suggest it? I have a minute difference. Well, that in itself does not meet the burden under the loruch standard. The counsel has the point to, especially given the benefit of a year, a year and a half now that we had trial, counsel has the point to a specific oversight error that could have changed the result. Not the fact that the result itself was not to his liking. Not the fact that he would have liked more time. That's not the standard. Not the fact that he had a lot of work to do, more work to do, leading up to trial. That's not the standard. The loruch case does a great job of outlining what specific prejudice means and what it what it what what what what defense is required. Really having this case. It evidence the way in which these cases are presented. We talked about ineffectiveness and surely not talking about ineffectiveness. That's born in the fact that the counsel is not doing the dirty job. The counsel's the way to hear it is ineffectiveness because I was put in a position where that's the best that could be done. I was put there because I wasn't ready. The court forced me to go which rendered my services ineffective but I would have been effective had you given me more time. It kind of puts in a different being than this trickling type of analysis of ineffectiveness. It's interesting as I'm listening what's going on here with you right. I think that the loruch case cabins this thing in a way it's almost you start with even if there is an abuse of discretion you could almost do like you do in the cases didn't even fall about a minute. Just go that second problem and just deal with it. I don't know how you overcome it unless you can show something specific there in that record. It seems to be pretty pretty pretty pretty specific. I agree judge in other words you'd have to say okay now that that we've had a chance to look at the documents that we didn't have a chance to thoroughly review before trial. We found this document that would have been exculptor or that would have significantly changed the dynamic of the cross-examination of Dr. Swisher for example. That's never been presented at any point even to this day. So without that there can't be specific prejudice. And for that reason the government would contend that under both prongs the abuse of discretion the court did not arbitrarily proceed on the trial and that the defendant has failed to establish any specific prejudice in the case and for that reason the other reason not brief we would ask the court to affirm a law report. Thank you Mr. Harris you resource the time for the bottle. Thank you, your honor. We did not expect a perfect trial. We don't think we're entitled to have a perfect trial but we are entitled to have a fair trial and one of the hallmarks of having a fair trial is the ability to access witnesses to bring them to court to have them testify on your behalf and counts eight through 13 of the second superseding indictment the new counts. There are individuals listed by initial initial only after that time the government said these are the names of the people we had no way of contacting them or locating them there were no addresses no phone and we're not saying the government did that intentionally but it became part of the problem when the court didn't grant a continuance within 70 days when we had never asked for a continuance before there was reference in the new counts to Kaiser Permanente healthcare right and the issue was what was the propriety of submitting these documents for reimbursement when Dr. Swisher was deemed to be the quote administrator of the lab and didn't see the patients well we had no way of contacting Kaiser Permanente with respect to those specific documents in the new count that for them would have been looking for a needle in the haystack but that could have been exculpatory to say this is done all the time an administrator of a lab doesn't have to see patients as long as a healthcare professional sees the patient and doesn't upcode and doesn't phantom bill what prevent you from doing some of this post trial? Well by then the trial is over and you have to deal with the very difficult issues of sentencing and dealing with the client and his family you know Dr. Sode was a professional the newspaper the TV was there every day during the trial this was a big deal and those sorts of things cannot be discounted and so were the case that we were with a huge firm we would be able to scour the countryside to try and find this information now but from a practical standpoint you have to prioritize once the guilty verdict comes in and we think that we preserve this issue of not having sufficient time we think that the court should look to the US versus Rojas Contreras case in Justice Blackman's concurrence where he says specifically in the event of additional charges a defendant may well need additional preparation time we have that here the constitution or right to assistance of council is rendered meaningless if a defendant is forced to trial in the absence of time to prepare we weren't even asking for the court to put off the trial with respect to the original counts we were ready to go on those it's these new counts which we believe deprived us of a fair trial not a perfect trial we're not entitled to that but a fair trial and the other thing is with respect to Dr. Swisher he was identified as a witness on May 29th five days before the second superseding indictment came out he along with hundreds of other people his name is contained in those hundreds of thousands of pieces of paper there was no way for us to know that up until May 29th of 2013 that Dr. Swisher had anything in the world to do with this case whatsoever and all we could get was a telephone interview and not show him documents because we hadn't seen him yet and finally it's a bit disingenuous to say we already had the documents relating to Dr. Swisher first of all we didn't because we kept getting discs there's a way for us to quantify the number of pages if we go back and we can do that and if the court wants to submit a supplemental briefcase related to that but the point is we can't figure out as we're preparing for trial which pages are going to relate to an indictment on counts that hasn't even happened it's difficult enough to predict a witness as testimony if you can't or oftentimes don't have the ability to interview the witness beforehand but it's the lawyers job to to get prepared an interview and find every witness that could possibly support the defense and in these cases it isn't when you defend them as I know your honors know the government has to prove beyond the reasonable doubt each and every element of the crime alleged and so sometimes getting an acquittal on one count like the tat one of the tax counts related to focusing just on one piece of paper or one element of the crime within the confines of the indictment we couldn't do that with the new indictment so your honors I'm grateful that you're hearing us and we appreciate the time and we ask that this case be reversed and that we have the opportunity just as we got an acquittal on 10 counts from the original indictment that we have the opportunity to properly prepare and try these remaining counts thank you thank you very much Mr. Harris I would ask the courtroom deputy to adjourn court sent signed eye and then we will come down and council and we will briefly conference these cases and if there's any time when an in before lunch and there are students around who would like to ask us questions we'd be happy to do that with the understanding that of course we cannot discuss the cases that we heard this morning thank yo