Apologies for the long delay. Here is a summary of Oral Arguments for Appeal in the case of Dr. Rafil Dhafir. Arguments took place at the Second Circuit Court of Appeals in New York City, on August 28, 2008

[An appeal is not a retrial. The appellate court does not decide a defendant’s innocence or guilt, it decides whether the court proceedings were conducted according to the law. More informaton on appeal here.]

The oral arguments started at 10.30 a.m. with Peter Goldberger, appeal counsel for Dr. Dhafir, speaking first for 19 minutes. Michael Olmsted then spoke the same amount of time for the government. Mr. Goldberger was allowed a short rebuttal after Mr. Omsted spoke.

Mr. Goldberger started by telling the court that it was his privilege to represent Dr. Rafil Dhafir. He then said that he did not contest the in limine ruling (that Dr. Dhafir couldn’t challenge the government motives for bringing the prosecution or the integrity of its case), but that he did want to challenge how the ruling was enforced in court. The ruling was improperly applied because the defense cross examination intended to show witness bias and, therefore, should have been allowed proceed.

Judge Sotomayor said that it was not clear from the briefs that the purpose of the defense cross examination was anything other than challenging selective prosecution (which was improper, because this had already been ruled upon before the case came to trial). She asked Mr. Goldberger to provide examples of witness bias the defense was attempting to challenge. Mr. Goldberger gave the example of Chad Munroe, the local detective who had been involved early on in the case, and also the examples of subjective interpretation by FBI Agent Jim Kolbe, and IRS Agent Mark Sweeney, in the fraud charges of the case. Judge Sotomayor didn’t seem to be too convinced by this.

Judge Calabresi joined in the discussion, turning it to the matter of whether the ruling, as enforced, was more “probative” than “prejudicial.” [This is one of those things where my head hurts when I try to think about it and so I will quote Peter Goldberger (it’s all related to how the in limine motion, preventing the defense from challenging the government motives or the integrity of its case at trial), “Evidence is not allowed at a trial unless it tends to make more (or less) likely some proposition that has legal significance in the case (that’s what’s called “relevant”). However, even if evidence is minimally relevant, it can still be excluded (upon objection) if the tendency to create “unfair prejudice” (confusion, emotion, repetition or other waste of time, misleading the jury, etc.) “substantially outweighs” the probative value (strength of the relevance).”] Judge Sotomayor and Judge Calabresi appeared to be thinking along the same lines, that the defense had not (quoting Mr. Goldberger), “’made a record’ that their cross-examination which the trial court obstructed was intended to reveal the witnesses’ bias (a proper purpose) or to defy the judge’s ruling on selective prosecution (not proper). However, Mr. Goldberger suggested to the court that, even though it was not explicit (the defense trying to prove government witness bias), it was sufficiently implicit to be relevant. He brought up again how the mail and wire fraud charges showed this dynamic in operation.

Judge Parker joined in and the discussion moved to how prejudicial the enforcement of this ruling was to the jury. Mr. Goldberger suggested it had been very prejudicial, particularly because the prosecutors had used Dr. Dhafir’s “bad character” in summation, suggesting that both in his running of the charity, and his running of his medical practice, he followed the rules that he wanted to follow.

This prompted Judge Sotomayer to bring up the part in the appeal brief that suggested the government had asked the jury to judge Dr. Dhafir on the fraud charges in a religious context (the government’s interpretation of Islamic law) rather than in a secular context as it should have. She did not seem to think there was any merit to this, but Mr. Goldberger suggested there was, saying that the problem is “a delicate one, it’s not an irrelevant one.”

Michael Olmsted then took over for the government. He told the court that this was a straightforward case and they should separate rhetoric from facts. He also said that in Spring 2004 the government had offered to unlink the Medicare charges from the rest of the charges. Judge Sotomoayer immediately picked up on this saying that it was not in the record. Mr. Olmsted said that there had been discussions in his office about it. Judge Calabresi stepped in reiterating that, as this was not part of the official record, it was not relevant to the court. This did not seem to create a good impression with the judges. Here’s what the defence appeal brief says on this subject,

The opening brief, IV states,

Joinder of the health care fraud counts with the rest of the charges was plainly erroneous because the allegations relating to medical billings were completely separate, distinct and unrelated to the other acts and transactions set forth in the other counts of the indictment, and likely prejudiced the defense on the latter counts on the question of intent to defraud.

And P. 53

In a case which turned largely on Dr. Dhafir’s intent, the all-important line between character and intent had to be strictly policed, not blurred by prosecutorial rhetoric. As actually deployed by the government here, the healthcare charges, evidence and argument were devastating to Dr. Dhafir’s defense on the other counts in the indictment. Accordingly, the mis-joinder of the health counts constitutes plain error and requires vacating all of Dr. Dhafir’s convictions.

Judge Calabresi then brought up the fact that sentencing had been imposed on faulty guidelines. Mr. Olmsted argued that it had not, and there was some discussion about “dirty money” and “clean money” (this affected the length of sentence Dr. Dhafir got). The government appears to contradict itself on this issue, trying to have it both ways, and this was something that the judges picked up on. [Mr. Goldberger helped clarify this point for me and said that the distinction is “whether the money was generated by “criminal activity” perpetrated by the defendant himself (making the money laundering a mere aggravating factor) or whether the money had a different source, making the defendant a “third party launderer.” According to Peter Goldberger and Barry Boss, Dr. Dhafir’s two appeal attorneys, this is a major sentencing point and, “Best case scenario, it could actually make up to a ten year difference (or less, depending on lots of different assumptions and factors.)] Mr. Olmsted tried to justify the sentencing calculations and Judge Calabresi said that it was an “infinitely too complicated way of doing things.”

There was more discussion about “plain error” (related to the health care fraud being joined to the other charges) and the “probative” and “prejudicial” issue, related to how the in limine motion was enforced at trial.

Judge Parker then asked Mr. Olmsted why there should be Medicaid restitution when Medicaid was not part of the trial. Mr. Olmsted answered that if a crime involves a “scheme” then restitution involves even people who were not in the indictment. The judges did not seem to agree with this and also questioned how Help the Needy could be a defendant and also be one of the parties to receive restitution.

Katherine: I hope this summary might be helpful to people. I am grateful to Peter Goldberger for his help, however, any mistakes that I have made in this recounting are completely my own. If you are interested in knowing more I strongly encourage you to read the briefs, available here. They are very readable with not much legalize, apart from parts on the sentencing issues.

For more information see Case Not Proven.

You can see the appeal judges from Dr. Dhafir’s case, Judges, Calabresi, Sotomayor, and Parker, in action in these proceedings from Maher Arar’s case.