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case number 23-3177, United States of America versus primary gooding at balance.

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Mr. Flannery, for the balance, Mr. Lieberman, for the appellee.

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Good morning, counsel.

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Good morning.

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Good morning, your honor.

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It's my honor and privilege to represent Dr. Gooding, a man who the only offense was to try to treat his patients, seniors who

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Like many patients across America, or the collateral damage of a DEA policy to shut down all doctors who give pain medications more than a Tylenol.

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The first proposition that we raised in our brief on appeal was judicial bias.

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That we are entitled to an impartial tribunal, and in this case, we did not have one.

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We did not have one for the end of the first case that resulted in a missed trial, and we certainly did not have one on the second trial.

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I do not say that this was done with any malice of forethought.

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We found out about it only because of the admission by the judge, judge who is well-regarded and well-respected, who honestly expressed her opinions.

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Now, in 28 USC 455A, it provides that we can challenge and look for the impartiality that might reasonably be questioned.

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We have that here.

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There is a second provision in the code 455B,

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which talks about personal bias or prejudice.

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The government, in its brief, my colleague, cites an affidavit that is connected to that second prom, personal bias or prejudice, rather than her impartiality might reasonably be questioned.

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28 U.S.

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Code section 144.

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Did you raise this issue below?

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Yes.

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You raised it before the district court?

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No, no, no.

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We did not raise it below, Your Honor, because we found out about it after a year of this bias being concealed from the... Did you find out about it while you were still in district court?

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I'm sorry, I didn't hear you.

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Were you still in the district court when you found out about it?

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After sentencing, yes.

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Okay.

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Why didn't you raise it in the district court?

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Because it would have been futile.

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Why?

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Because all the damage had already been done.

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Her removal from the case at that point would not have solved any of the problems of her prejudice in the case.

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In fact, her original decision... So her removal will not resolve your bias claim.

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Is that what you said?

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You just said that her removal would not solve your bias claim?

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No, because the bias had already done its damage.

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Well, normally what happens if you actually have a bias claim is that there'd have to be a new trial.

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Well, I think when a court says that it doesn't trust the word that you say, you are not entirely candidate.

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I do not believe you told the truth on the stand.

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And when you say that just before a mistrial in the first trial, and you go through a whole second trial, and you make this- And that's not a question I asked you.

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I'm asking you, you're supposed to raise these issues, not supposed to save them for appeal.

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Well, there is no requirement for a waiver as the first prong of 455A, which says her impartial.

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Our president says if you don't raise it in a timely manner before the district court, even though you knew about it, you have waived the argument.

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Well, first of all, it couldn't be timely because it had been concealed for more than a year.

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since September of 2000.

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It's timely if you become aware of it while you're in the district court.

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You become aware of it and the case is over.

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The case has ended.

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There is nothing for the judge to do.

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You can ask for reconsideration.

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But there is no debate about the words and 28 USC 144 speaks of raising... Have you looked at the precedent on this issue?

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I think the statute is sufficient, and yes, the precedents... Oh, I'm sorry.

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Is our precedent not relevant to this issue?

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Is that your position?

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My position is that the cases that cite 28 U.S.

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Section 144 are limited to the question of personal bias or prejudice, which is 28 U.S.C.

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455B.

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Your position is you just can raise this for the first time on appeal.

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I just want to understand your position.

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My position is we first knew about it at the end of the case and I just record.

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That's a factual answer.

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I'm asking you what your legal position is.

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My legal position is we raised it on appeal.

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Stop.

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Don't interrupt.

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So please explain to me what your legal position is on when these can first be raised.

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We raised it on appeal.

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And you don't have any obligation.

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Would you have any obligation to raise it in district court if you learned about it?

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Not under the circumstances of this case.

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No, it's not what I'm asking for a legal position.

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You want us to write an opinion?

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Well, you just asked me a question.

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Excuse me.

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Is your position that had you learned about this mid-trial on the second trial, that you still, given the statute's words, would not have to raise it?

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on appeal, until appeal.

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I would have raised it during the trial if I knew about it.

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The bill position is though, you just said the statute doesn't seem to require you to raise it in the district court.

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No, what I said was the statute does not require an affidavit except if you're invoking 28 USC 455 B, which involves personal bias or prejudice.

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And the affidavit mentioned in 28 USC 144 is an affidavit limited to that question.

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personal bias or prejudice.

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And in that circumstance, and only in that circumstance, in any authority I can find, is the only case in which an affidavit is considered.

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And an affidavit does not have to be presented before the term date, and for good cause, it can be ignored, it can be overlooked.

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You don't have to file an affidavit even as to the prong, B, personal bias or prejudice.

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And as an example,

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Example of what went wrong here is we have the court on the one hand saying that the similar act out of a Delaware administrative proceeding doesn't apply.

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That is her statement, the court statement on August the 8th, 2022.

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And then my client's testimony is on September 12th, 2022.

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And after that date, then we see these rulings that are consistent with this bias that she expressed only a year later toward the end of the second case

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after the sentencing.

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Yes, sir.

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What our precedent says is to raise this exact type of claim.

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You have to raise it, quote, within a reasonable time after the grounds for recusal are known.

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So I think kind of the straightforward question is, why couldn't you have raised this during the sentencing hearing or at a reasonable time after the sentencing hearing?

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That would allow the district court to respond, to build a record, and then it goes up on appeal.

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And that's what our cases say is required.

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Well, but we raised it within literally days after we knew about it in the appeal.

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Right.

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And the argument that you're making to me is that we can have a biased tribunal, but procedurally we can protect that bias should it not be raised then when it would be a futile exercise given the fact that the prejudice had existed for more than a year in the trial court to the disadvantage

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of my client who's entitled to an impartial tribunal, which he did not have.

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So it's not an argument.

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It's just we as a panel are bound by our precedent.

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So it seems to me it's very straightforward that a motion could have been filed after the sentencing hearing in the district court.

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So is there anything you can tell us about why it was impossible?

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for example, for you to do that.

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Impossible.

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You think it would have been futile.

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I mean, I think if anyone thinks the judge is biased against them, probably thinks the recusal motion is biased, it's futile.

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Sorry, sir.

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Yeah, go ahead.

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I think this circuit, forgive me too much, New York.

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I think this circuit has only expressed this view about an affidavit and when it's raised in the question of personal bias or prejudice, which is prong 455B.

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That's my position.

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And I understand what you're saying, that you have

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said, if you don't raise a question and don't object and so forth.

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OK.

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But I found no cases in which a judge had admitted to a bias more than a year after two cases had concluded and admitted that she believed that my client was not entirely candid and so forth, and that her opinions in the case changed after that.

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Rarely do we see an expression of bias so clear and so evident by a jurist.

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And I'm talking about a lifetime of seeing judges say, oh, I said that.

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I shouldn't have said that and reacting to it.

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Can you explain why this was so out of bounds?

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It seems to me that at sentencing, it is fairly commonplace for judges to comment on how forthcoming they think the defendant was and how candid they were during the trial.

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Well, I'll give you an example.

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In August 8, 2022,

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The court said that it thought that the similar act, so alleged, out of Delaware was an act that could be considered too prejudicial, involved malpractice, negligence, that

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It had no bearing on this case unless at any time it could be presented that the implication of knowledge was necessary as a result of that earlier proceeding.

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After that, the judge heard my client's testimony at the first trial and her judgment changed.

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Now, people can have biases.

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The court had a bias.

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The court made reference to the family's experience in the medical profession.

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and suggested that that was a reason.

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The judge said we would not consider, if you will, malpractice elements in the case.

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Well, and the malpractice elements in the case were raised as a result of this earlier proceeding never permitted to be considered by the court, so the court said, but then they were.

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There were no instructions to the jury as to how to handle them.

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And in the case, we had two barrels of information.

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One barrel was excluded from anything having to do with ultrasound.

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The other barrel only mentioned the questions of fluoroscopy and CT as imaging devices.

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What the government did was they only looked at those codes that involve fluoroscopy and claimed, see, see all of this.

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Ignoring the fact that was disclosed and not deceived was

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In every instance we can find, and it's spelled out in our brief, in every instance we can find the government was informed, that is Medicare was informed of my client's use of ultrasound codes that were recognized by the- Thank you very much, counsel.

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Your time is up.

[00:11:16] Speaker 00:
Thank you, your honor.

[00:11:18] Speaker 01:
My understanding is you did not wish to have any time for rebuttal, is that correct?

[00:11:23] Speaker 00:
If I could have two minutes, I would appreciate it.

[00:11:26] Speaker 01:
Okay, because you told the clerk you didn't want any time for rebuttal?

[00:11:29] Speaker 00:
No, I didn't expect to spend so much time enjoying our discussion about the first issue.

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OK.

[00:11:33] Speaker 01:
Here from the United States now.

[00:11:43] Speaker 04:
Good morning, Your Honors.

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May it please the court, Dave Lieberman for the United States.

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Turning to the judicial bias argument, I think from the court's questions, the court understands the government's position.

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We read this court's precedence to say that a litigant asserting a judicial bias claim must raised at first in district court.

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That's the Bryce case that we cited.

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Bryce cites a previous case, Barrett.

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I think has the exact factual circumstance at issue here raised for the first time on appeal.

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Alternatively, we think that the district court here, Judge Chuckin, for the reasons expressed by Judge Garcia, it was permissible for the judge to consider a defendant's obstructive conduct during the course of

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proceeding.

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We've cited a number of circuit cases, including this court's decision in the Ransom case.

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And we've also cited the Supreme Court's decision in Lateche, which makes clear, in our view, that events that happen inside the courtroom, inside the proceeding that a judge observes, rules on, is not ordinarily grounds for judicial bias, absent a showing of deep-seated antagonism.

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And the record does not show that here.

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I just wanted to flag at least a different recollection of the timeline than my opposing counsel as to the first trial as to when the judge made certain rulings.

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As I understand the record on day four, government supplemental appendix 40 and 41, this is where Judge Chutkin

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concluded that issues of Dr. Gooding's knowledge were in play and therefore authorized the admission of the redacted Delaware Medical Board order.

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And then by my recollection at the first trial, Dr. Gooding testified subsequent to that.

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So I think she issued her ruling before

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the defendant testified, so I don't see how that possibly evidences her bias.

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Mr. Flannery referenced some comments by the district court regarding the prejudicial nature of the redacted Delaware medical board order as evidencing her initial position.

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If I could provide some context, these were in the reply brief at pages 16 and 17.

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The court made those comments at the pretrial conference before the first trial.

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And the court was looking at the unredacted version of the Delaware Medical Board order, which provided extensive detail on Dr. Gooding's actions with respect to the patient in that case and made a number of findings unrelated to the fluoroscopy requirement.

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I think everybody in the courtroom agreed could not come in in this case.

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These were the findings of negligence in certain

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Things that Dr. Gooding failed to do after the patient deteriorated in his office, lack of training, lack of records.

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We can provide the court with a copy of the unredacted order if you would like to see what Judge Chuckin was looking at when she made those comments.

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It is later at the pre-trial, on day four, Judge Chuckin supervises the extensive redaction.

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of the medical board order, which you have in the government supplemental appendix, to remove all of these collateral matters.

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And she finds that these redactions are sufficient to remove her concerns, her initial concerns about prejudice.

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I have no further comments unless the court has any questions about the judicial bias issue.

[00:15:09] Speaker 01:
I would ask you about the 404 issue, about the omission of this medical board.

[00:15:16] Speaker 04:
Yes, Your Honor.

[00:15:16] Speaker 01:
The redacted version of the medical board order.

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That involved different procedures.

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The conduct at issue was eight years before the conduct at issue in this case.

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And it had nothing to do with how things were billed to Medicare or knowledge

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of what Medicare required or standards that it required.

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It dealt only with Delaware standards of care.

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So how under McGill and other precedents was that report not too stale in time and its conduct, the conduct that it addressed too far afield to outweigh the prejudice and the prejudice balance?

[00:16:11] Speaker 04:
So let me take the staleness issue first and then I'll go to the second part of your question.

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As to the staleness of the 2009 medical board order, but the restrictions in Delaware continued on for multiple years afterwards.

[00:16:26] Speaker 01:
It was also, that order was... You're admitting it for the conduct and you're trying to show knowledge about conduct.

[00:16:34] Speaker 01:
The fact that he had a suspension in Delaware isn't the conduct that you're trying to admit.

[00:16:41] Speaker 01:
You wanted to admit and what you admitted into evidence was that he had performed these procedures

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without fluoroscopy or CT, but they were different procedures, but he had performed them without those technological supports.

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That time gap between when he performed those without technological support and when he performed the procedures at issue here without the procedures that Medicare requires was at least eight years.

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So I think the times of yes.

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And that's way too long, Dr. McGill.

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So I would ask the court to take a look at both the results of it or the Delaware Medical Board order.

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I have looked at it.

[00:17:31] Speaker ?:
Yes.

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instructions about the standard of care and the probationary period continue for multiple years beyond 2009.

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And the same restrictions were adopted by the DC Medical Board and went up to 2014, which is a year before this scheme started.

[00:17:50] Speaker 01:
Were you admitting the report to show the length of the sanctions or to show that he had engaged in similar conduct?

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to show his knowledge of the fluoroscopy requirement.

[00:18:02] Speaker 01:
Well, his failure to comply with the requirements, his knowledge of it.

[00:18:05] Speaker 01:
So you're saying that would have been at least one when the board issued its decision in 2010.

[00:18:11] Speaker 01:
So you're still dealing with a five-year period.

[00:18:14] Speaker 04:
I think that's right, but the fact that the board had sort of put on probationary periods and it was going to continue to monitor him for compliance with the instructions regarding the standard of care, specifically the fluoroscopy requirement, the fact that the DC Medical Board incorporates the same up through 2014 gets us right to the doorstep of the conduct at issue here.

[00:18:39] Speaker 01:
So we think it- And also that conduct was

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failure to comply with, I guess, Delaware's medical standards.

[00:18:47] Speaker 01:
But that's not this case is about filings, fraudulent filings with Medicare seems to me, I mean, I don't know how, even if I give you the time gap, his knowledge of what Delaware required as a standard of care, informs

[00:19:07] Speaker 01:
what Medicare is going to require for billing?

[00:19:10] Speaker 04:
So two responses to that, Your Honor.

[00:19:14] Speaker 04:
First, the scheme that we charged, this is paragraph 17 of the indictment, we alleged he submitted false and fraudulent claims for services that he knew were not medically necessary.

[00:19:25] Speaker 04:
That's the Medicare standard.

[00:19:26] Speaker 04:
And so evidence that he had been informed of the standard of care in Delaware and that the DC Medical Board subsequently adopted

[00:19:34] Speaker 01:
So that might be, sorry, just to interrupt, this might be the gap in my understanding.

[00:19:39] Speaker 01:
When the DC board opposed reciprocal discipline, which we do all the time as to attorneys, does that mean that DC has this, does that show that DC just does reciprocal discipline or does it have the exact same standard of care on this very issue?

[00:19:58] Speaker 04:
I honestly don't know the details of the DC.

[00:20:02] Speaker 01:
If he doesn't show that, then I'm not sure how it helps.

[00:20:05] Speaker 01:
I mean, if it means that they have the same standard of care so that he would know he wasn't doing the standard of care in DC when he did these procedures and yet was filing with Medicare.

[00:20:15] Speaker 04:
So if I'm recalling the record correctly, the DC medical proceedings

[00:20:20] Speaker 04:
I think they were started by this reciprocity that Your Honor is talking about.

[00:20:24] Speaker 04:
But Dr. Gooding did not contest the decision of the DC board to basically adopt the same probationary terms.

[00:20:35] Speaker 01:
That's different than saying adopting the same standard of medical care in DC.

[00:20:39] Speaker 01:
I mean, maybe this is a universal standard of care.

[00:20:41] Speaker 01:
I don't have any idea.

[00:20:41] Speaker 01:
But at least I haven't seen record evidence about that.

[00:20:48] Speaker 04:
We also had a medical expert essentially testify that this is the standard of care everywhere.

[00:20:52] Speaker 04:
And the other point that I want- That's the theory.

[00:20:55] Speaker 01:
That's the kind of theory that it wasn't just that it was a reciprocal probation, but he knew when he set foot in DC and didn't procedures here, that at least for some forms of spinal injections,

[00:21:11] Speaker 01:
He had to do a classical year CT to comply with the standard of care.

[00:21:14] Speaker 04:
That's the connection, Your Honor.

[00:21:16] Speaker 04:
And a second basis is the defendant, Dr. Gooding, offered a good faith defense at trial.

[00:21:23] Speaker 04:
And if you look at this is in his closing argument where he counsel talked about Dr. Gooding was doing what is best for his patient population.

[00:21:33] Speaker 04:
He's treating them how he knows best.

[00:21:35] Speaker 04:
And he argues that all of this defeats the government's claim of intent, intent to deceive, intent to fraud.

[00:21:44] Speaker 01:
His argument is that I filled out forms where I told Medicare exactly what I was doing.

[00:21:52] Speaker 01:
There was some billing, special billing form that indicated he was doing it with ultrasound.

[00:22:02] Speaker 01:
Why does Medicare allow billing codes that it doesn't

[00:22:06] Speaker 01:
compensate for?

[00:22:08] Speaker 04:
So the testimony at trial was that the billing codes are medical codes not created by Medicare, but by the American Medical Association.

[00:22:17] Speaker 04:
And that the codes that the defense was referencing, the T codes, are for experimental, unapproved procedures.

[00:22:25] Speaker 04:
But they still get codes because it's a record keeping point.

[00:22:28] Speaker 04:
But there was unchallenged testimony that Medicare does not provide reimbursement for T codes.

[00:22:36] Speaker 04:
Your Honor, also your first question asked about that these were different procedures.

[00:22:43] Speaker 04:
I just want to respond to that.

[00:22:44] Speaker 04:
So the Delaware procedure was a cervical spinal injection, so at the top of the spine.

[00:22:49] Speaker 04:
The procedures discussed at trial were in the lower portions of the spine.

[00:22:53] Speaker 04:
And Dr. Gooding, in his reply brief to this court, has argued that these were different procedures, couldn't possibly show knowledge.

[00:23:01] Speaker 04:
That argument has been raised for the first time in the reply brief.

[00:23:04] Speaker 04:
It's not in the opening brief where the 404B claim is at pages 48 through 53.

[00:23:11] Speaker 04:
So in our view, this claim has been abandoned or forfeited.

[00:23:15] Speaker 01:
Did he raise that point in district court in opposing the admission of the records?

[00:23:19] Speaker 04:
No, Your Honor.

[00:23:19] Speaker 04:
So district court docket number 42, his motion in Lumine, that was before the first trial.

[00:23:26] Speaker 04:
His district court docket number 100, that's in advance of the second trial.

[00:23:30] Speaker 04:
There's no message of this distinction claiming a difference between injections at the top of the spine versus injections at a lower portion of the spine.

[00:23:38] Speaker 01:
In fact, he admitted knowledge.

[00:23:41] Speaker 01:
what was required, do you not?

[00:23:43] Speaker 04:
Absolutely.

[00:23:43] Speaker 04:
And in the defense motion in Lumine before the first trial, district court doc at number 42, page 4, the only mention of this actually goes in the opposite direction.

[00:23:55] Speaker 04:
The defense motion talks about the Delaware procedures and then makes reference to, quote, the similar medical procedures in this case.

[00:24:02] Speaker 04:
That happened again at this is separate and apart from admissibility.

[00:24:07] Speaker 04:
But this happened again with Dr. Gooding's own trial testimony in the first trial.

[00:24:11] Speaker 04:
He talks on direct about the dangers of cervical spinal injections.

[00:24:16] Speaker 04:
On cross examination, my colleague asked him about the medical board.

[00:24:20] Speaker 04:
He acknowledged standard of care, the fluoroscopy requirement with respect to cervical injections.

[00:24:26] Speaker 04:
The trial transcript, district court document number 90, transcript pages 976, 977.

[00:24:32] Speaker 04:
My trial colleague then asks about the facet joint injections in this case.

[00:24:36] Speaker 04:
This is a direct question to Dr. Gooding.

[00:24:38] Speaker 04:
Is it fair to say that the procedure

[00:24:41] Speaker 04:
is virtually the same procedure, just in different parts of the spine, the cervical spine, the thoracic spine, the lumbar spine.

[00:24:48] Speaker 04:
You agree with that?

[00:24:49] Speaker 04:
Answer from Dr. Gooding, yes.

[00:24:52] Speaker 04:
And so just compiling all of the information before the district court in terms of what was raised, what was not raised in the motions and luminaire responses, the district court had no notice that there was any

[00:25:06] Speaker 04:
dispute that these were different spinal procedures, such that evidence of knowledge with respect to the fluoroscopy requirement as to the procedures at the top of the spine did not extend to Dr. Gooding's knowledge of the requirement and into lower portions of the spine.

[00:25:22] Speaker 04:
Unless the court has any other questions about this or any additional claims, the government asks that the court affirm.

[00:25:26] Speaker 01:
Thank you.

[00:25:27] Speaker 01:
All right, Mr. Flannery, we'll give you the two minutes you requested.

[00:25:31] Speaker 00:
Thank you, Your Honor.

[00:25:39] Speaker 00:
The Delaware proceeding referred to any performance of cervical and paracervical injections.

[00:25:47] Speaker 00:
It's in our brief at page 12, our opening brief, and cites the indictment at page three, paragraph 11, and it's in the appendix at page three.

[00:25:57] Speaker 00:
The government, however, talks about spinal injections instead of paracervical.

[00:26:08] Speaker 00:
the significance is the difference in the bone structure and how much more care must be administered when dealing with the upper region of the spine as opposed to the lumbar and sacral sections of the spine.

[00:26:21] Speaker 01:
They just explained that this distinction was not raised before the district court when the issue of admitting the Delaware report came up in either case.

[00:26:31] Speaker 00:
It was argued.

[00:26:32] Speaker 00:
It was argued because of the distinction and the argument was frequently made.

[00:26:36] Speaker 02:
You have a record citation?

[00:26:38] Speaker 00:
As I stand, no, but I can supply it, Your Honor.

[00:26:42] Speaker 00:
The argument in the trial was very much about two things, I would say.

[00:26:50] Speaker 00:
One is that the codes that my client used were disclosed to Medicare.

[00:26:56] Speaker 00:
So it wasn't a question of deception.

[00:26:59] Speaker 00:
It was a question of disclosure.

[00:27:00] Speaker 00:
They had the disclosure.

[00:27:02] Speaker 00:
But in the arguments made in the case, we only talked about those codes

[00:27:08] Speaker 00:
that the government chose to focus on, that they said were violative, and that could not be said because he should know that it can only be done with fluoroscopy or CT.

[00:27:20] Speaker 00:
The AMA codes, which provided for ultrasound, not only were in the code book for all the years that are relevant to the charged indictment, but also they were charged and the government says,

[00:27:39] Speaker 00:
We presume the honesty of our providers.

[00:27:42] Speaker 00:
Now, while that may be what they say, the evidence is that for everybody, both my client and the peers that they used, that they were permitted to both submit requests and those requests by my client and others.

[00:27:58] Speaker 00:
And my client included the ultrasound codes, the AMA codes, that they granted money for it.

[00:28:08] Speaker 00:
And first they said,

[00:28:09] Speaker 01:
I think we have that from that argument.

[00:28:11] Speaker 00:
You have that in my brief, yes.

[00:28:12] Speaker 01:
All right, thank you.

[00:28:13] Speaker 01:
The case is submitted.

[00:28:14] Speaker 00:
Thank you, Your Honor.

[00:28:15] Speaker 00:
Thank you, panel.