chief judge carnes please the court my name is david markets i will be speaking on behalf of montenegro i'd like to address the following argument this morning st that the evidence of the fraud count was insufficient nd the sentence on count one was an error because the judge made no findings on the multi object conspiracy at sentencing which was required by binding case law rd the trial court interfered with jury government had to show two things st that the prescriptions were not for a legitimate purpose and nd that montenegrin knew that the doctors were issuing prescriptions for non medical or knowledge of the purpose and the government did not prove either of these elements the government conceded to the district court although it changes its fact on appeal that it did not prove the prescriptions were legitimate for example that medical necessity was not at issue in the case  the rule twenty nine dollars after it closed after the defense closed its case in opening and in closing argument and the reason that the government made such a concession is because it never called any expert witness it only called one of the treating physicians and that doctor said that all of his prescriptions that he signed work valid and legitimate in fact both the government and the trial court stated after rule twenty nine argument that it would not be possible to present the case against the doctors because you or let me stop you for a question this is judge marcus  as the government obliged to put upon an expert or could they not rely on several witnesses who testified that they signed up to got the money not because they needed any of the products like for scar cream or anything like that where is the obligation of the expert found so judge marcus there's no requirement of calling an expert but there is a requirement of proving medical necessity that the prescriptions were issued for for a non medical purpose and so all of this court cases from the dean on have said kickbacks are not enough to prove fraud so there's lots of different ways to prove medical necessity for the government one is calling an expert of course to do is calling the treating physician to somehow say that they were not issuing valid prescription but just relying on the patients and in this case by the way the patients have said when they say that they all spoke to the doctors they all told the doctors of their ailments they all had  pain and that the doctors relied on that initiative issues and mark but i thought we had one patient she got the star cream expensive scar cream prescription and  she did not have a scoff so there was one patient who said well there i think you're referring to nicole powell who said that on direct but that but then she sent an e mail to mr grow and that was brought out where she wrote to mr grow for your information i am loving the scar cream i had a burn scar on my chest and it is almost gone after months of use that page one hundred and twenty three docket entry to thirty one don't think so your honor because i think they had to show two things there one that she was given a prescription for some non medical purposes let's assume that the jury could disbelieve on that case that there was some legitimate reason they also have to prove that grow knew that the doctor issued the prescription for non medical purpose and there's no evidence of that so so you know unless they had somebody who said some doctor treating physician or someone else who came up and said look we were prescribing it for for outside of the code course of medical purposes they fail and that's that's on all fours with the medina case and in fact medina had sort of i'll say worse facts than the growth case in medina there were oxygen concentrator is that were prescribed but not used and the government said therefore they weren't medically necessary in the co rejected this court rejected and said there's no evidence that the oxygen wasn't legitimately prescribed so they're really let me ask you a follow up question carol so wasn't there testimony from ginger crow ginger lay close co defendants that the tri care beneficiaries they targeted did not need these medications no your honor she did not say that in fact she said that they were looking for tri care beneficiaries that needed that could fill out the intake form and said that there was a scar or pain and that's why those intake forms and those patients were sent to the doctor's group so there was no evidence that they were targeting people who didn't need it that would make sense for for the operation and that's a perfect example of the substantive count in count five lands far less than that he testified he had a knee injury he was going to physical therapy he was taking a painkiller they try to equate need with life or death and that's not what medical necessity means and that's why both of the fraud counts fail i'd like to move quickly to the sentencing on count one which was also invalid because there was no specific verdict form and because the trial court did not make any final at sentencing as you know count one charge to object healthcare fraud which is a ten year count and wire fraud which is a twenty year count both sides requested a verdict form where the jury would have specified which object it was the man in the sun but the trial court didn't get it and the trial court did not make any judge that he had to make such findings and the judge didn't make it so i think that's an easy one on the sentencing that it needs to be remanded if the court finds the evidence sufficient next i'd like to talk about the interference with the jury's deliberations here the jury was deliberating from wednesday on and on friday afternoon unprompted the judge tells them that they could reach a partial verdict and there was another jury starting on monday morning so it has to find some other place for them there was absolutely no reason to tell the jury such things the only reason to tell them that was to pressure them to come to a verdict to pressure them to hurry up and this was especially prejudicial in this case where the defense closed that the jury should not compromise the jersey never said they were at an impasse they never said they were having difficulty and the judge did not give them  say you know we shouldn't assume the jury is not smart they understood that he was giving them a lot of other missions we also have to presume unless he is strong and presents to the contrary that the jury follows this instructions and part of those struction instructions were that he termed leading up to problematic spar parts you take as long as you want or as little as you want you decide how long you stay this doesn't mean that you have to reach a decision about quote that directly addresses that point from united states versus more we cited in the th circuit case and the quote is absent the jury's declaration that it is deadlocked as to one or more charges giving the jury that case telling them that on a friday afternoon and saying another jury's coming in on monday d was interfering with the jury under the lee and so i think that gets us a new trial and i'll like to say wasn't the object here or at least part of the judge's purpose here that he wanted to tell them about scheduling because though they had worked six hundred and thirty some days today we're going to work only until five that doesn't mean you have to reach a decision by five he just was telling the jury had thirty five that at five o'clock they were going to break which was different from what they had usually doing so he was just really letting them know on a friday afternoon that they were going to go home at five wasn't that part of his object so judge if that's all that the district court said of course there'd be no problem if you brought them out at three hundred and thirty and said look you guys are going home at five today and that it's six hundred and thirty but he did a lot more than that he said if you want to reach a partial verdict you can which violated rule thirty one d two he also said you know there's not going to there's going to be a separate jury coming in on monday so we're going to have to figure out how to do your wishes other jury the message was clear not just that we're ending up five today but hurry up please it's so judge carnes i would respond to that the harm of giving this partial verdict instruction is not that you might get a partial verdict from the jury the harm is that it intrudes on the jury juries the liberated process in ways that we cannot know the jury was deliberating due to plan for a day and if we cannot know if you have failed to show that there was error that prejudice i guess the point is that these cases is that when a judge interferes into the jury's deliberative process by saying things like this the court can assume prejudice because you can't know you're not in the jury room they came back the very next day when they were told you can't have lunch has any court ever ascend to prejudice and reversed a verdict because the judge gave a partial verdict instruction where there was no friday afternoon at three thirty seven pm he kept them and they dismissed them at six o eight pm friday afternoon for a whole week and brought them back monday morning at eight thirty that i guess it read because because this was a huge indictment a very complex case of fifty plus counts so if they had again we don't know but if they had they were just deliberating and not reach any particle at three hundred and thirty on that friday afternoon coming back a few hours later the very next jury deliberation date seems pretty short in the scheme of things when they have not indicated an impasse and so i think we can take into account i don't think it's fair to say the weekend because they weren't deliberating over the weekend but the very next business day they're brought in and said and told no lunch today back to the to the pharmacy and very often the time is not clear but the point is that they would grow would give preprinted prescriptions to the doctor everybody in the county to get a prescription through him that doesn't mean that he knew that some of the prescriptions that were obtained by these patients from doctors were not medically necessary for example when sorry but can you give us one specific patient for which there is evidence that grow did not know that a prescription given to that patient was medically  necessary no but i can tell you that he can get a cite to evidence and testimony that he was instructing the people his patients and his recruiters and way and complaining to the doctors that it did not matter what the patients wanted he was telling them to make sure everybody gets it when you say everybody does medicine that is everybody when he is telling them it doesn't you know everybody gets it always give them this always words make sure they were done correctly and when there weren't governments exhibit forty nine he has goes back and forth with them and complains to the telemedicine company who is he the complaints with telemedicine company that the doctors are prescrib percent of the time he got what he wanted from the doctors his intent was that everyone gets a prescription and that shows that's not medical necessity because nothing in medicine is everybody else always has to be patient i'll give you another patien up she was asked did he ask about your medical needs and she said no it was a quote it was a way to make money and i needed to order the scar creams and the pain cream in order to do the business and she testified she didn't know she didn't to believe that this is part of the conspiracy but anyway she can recruit square von laxman who testified he didn't need the pain medication and he understood what this whole scheme was about quote it was an easy way to make a little bit of extra money and if it works it works if it didn't it didn't that's a thought that entry to thirty one dollars of the seven this is a conspiracy where he's letting the people know how this works and they understood quite well how they all kept testifying it was a way to make money it's not about their needs and they all understood that and that was part of his conspiracy and his intent that medical necessity was entirely irrelevant everybody getting the medications and that's why he can't rely on the doctors prescriptions and the board that we've had under nater where l required elements are missing there is no error in sentencing a defendant based on missing elements of facts that are inherently subsumed in the jury findings and here  two and the jury didn't find that they were both pressed that's the problem past get past the jury instructions were at sentencing i understand mr marcus to say we pointed out there's been no finding which often it's  in united states v allen we held that when the object of a dual object and spirit carry different maximum penalties a special verdict form and a finding by the jury with regard to the object is required and sentencing this person as though he was guilty of wire fraud because there's been the finding by the jury are by you beyond a reasonable doubt that he was guilty of the wire fraud objection object  let me ask you a question about that why would the judge when he's telling them on a friday afternoon that they were going to break at five rather than a normal at least until six  in the area of scheduling for him to have told the jury they could reach a partial verdict it was either that let me finish other than to try to prod them and push them mind and all that his own discussion with the lawyers shows that in his mind if this was a matter of fact scheduling issue to the extent we can know what his intent was to what was going through his mind the context of his discussion with the lawyers shows that there was no annoyance or surprise or intent to pressure or prod he's used this as a very matter of fact scheduling issue so that's what he was going the evidence here shows that grow clearly manipulated the skin and did not rely on the doctors and the jury's finding it's reflect that they rejected his his testimony and his convictions and sentences be affirmed thank you thank you thank you your honor it's st address the fraud counts counts one count five this is where the prosecutor has now said this was an easy way for grow to make money or for the patient to make money but again that's exactly the language that medina says is not enough so the fact that gro always wanted the doctors to prescribe these medications that may be true i mean all marketers and salespeople always want to sell sure but in every single case it had to go through the doctor so in every single case a doctor had to approve of the prescription and the doctor was free to change it alter it or not give it in fact the only doctor that they called dr bansal said that he frequently changed it and wouldn't approve what the marketer sent him he was the best evidence for the defense and that was the only doctor that testified also underscore that no prescription was altered or changed in any way when my friend says that growth would try to fix forms certainly that's true if something was filled out incorrectly but after a doctor signed the prescription there is no evidence and in fact really never altered or changed or forged a doctor's signature and that's critical in this case because in a lot of the other cases before this court we see for prescriptions we see fake doctors or fake patients or fake medicine none of that happens here we have real doctors issuing real prescriptions to real patients who've got their medicine the prosecutor also points out that and his argument just now that the prescriptions were prefilled and that somehow makes them invalid i would point out that that absolutely is not true in the same way that lawyers propose orders to judges that does not mean that the lawyers control the judges in some way the judges are free to either sign the proposed order throw it in the garbage alter it whatever they want of course every lawyers intent when they send the proposed order to the judge is that the judge signed it as is but that doesn't mean that the lawyer has committed fraud or that the lawyer is controlling the judge and in fact in this case all of the evidence shows that the doctors didn't always approve what was sent even ginger lay the government star witness said that and that's why over and over and over again at the trial the prosecutor said medical necessity was not an issue the defense proposed to call experts talking about the screams and the patient's charts and the prosecutor said there's no need and the judge agreed with that the district judge because medical necessity simply wasn't an issue the one patient out of the one hundred that the prosecutor can point to that testified that she didn't speak to a doctor broadbridge i think judge carnes correctly pointed out there's no evidence that gro knew anything about that so i don't think we can rely on josie brunch bit broadridge the one substantive count of course  no evidence that grown knew anything about him even if the prescription wasn't valid but in his particular case the prescription was valid he was in pain and he had scars and a doctor prescribed i'll turn quickly to the point about sentencing the object the prosecutor cites those two cases cromartie and meter but those are not multi object conspiracy counts in every that we cited including the one that judge markets raise those are multi object conspiracy count there have to be specific finding it was preserved and there were no finding finally the instruction issue this was not just the judge telling the jury about scheduling that will only go to five o'clock he was very very specific about the partial verdict instruction and i'd like to point the court to rule thirty one b two which says that a jury can reach a partial verdict only if they've indicated that they can't reach a full pardon and they have not they did not do so in this case that's why the district judge was in error to interfere let me ask you this i'm i'm having the court difficulty i have with your argument about the jury instruction is it didn't result in a partial verdict suppose the judge had told them you know it's totally up to you you're the judge the fact but i'll tell you something he's guilty as haiti don't count twelve just take it from me and the jury goes back to deliberate and comes in and doesn't convict him on count twelve but convict among some of the counts now you would be up  arguing that we had to reverse the other counts because the judge made an error and instruct him about that the judge made an error instructing about partial verdicts and they didn't render a partial verd they the necessary premise your position as i understand it is that every time a judge tells a jury that they can render a partial verdict we have to assume that training and the non partial verdict that they rent and that doesn't that doesn't make any sense to me so judge carnes let me address that because i'm not asking  i'm not a thank you i'm not asking for a bright line rule that anytime a judge gives this instruction it's reversible error per se what i'm saying is in the totality of the circumstances here friday afternoon three hundred and thirty dollars the judge had the jury had issue no notes they're told not only that they could issue a partial verdict but that there was going to be a problem on monday with another jury coming in and then on monday morning they're told they're not going to get munch and that they're only going to go to one o'clock and then and forty eight dollars they come with verdicts taking everything the totality of the circumstances in this case together i think it shows one that the instruction was improper to do that it rushed the message was to rush the jury and to prod them and three they were in fact prodded by that one o'clock deadline with no lunch because they came in at one thousand two hundred and forty eight so that we were arguing about the partial verdict  when there's an objection and you have to look at the totality of circumstances on appeal i think we can take everything into account with that instruction of what was going on but just so i'm clear about my reading of the record you did not object to him saying