we did fail to preserve this error here the crux of the distinction between the part of the record that you're accurately describing and our claim here is that that is involving a motion for judgment of acquittal under rule twenty nine a which has to be made during twice during trial and then of course as you correctly say have to be researched after the defendant goes ahead and opens up a case what are we what we did in this case is under rule twenty nine dollars c is make a motion for judgment of acquittal post verdict and the plain text of that rule contemplates that a defendant who never raises a motion for judgment of acquittal at trial at all can within fourteen days of the heavy burden as you well know that's true there are different burdens but there is precedent that we cited both in the circuit and persuasive from the th circuit that recognizes that even if a defendant files a motion from a new trial if the substance of that motion which i would maybe would not the most eloquent in in the motion in this case preserves a general challenge of sufficiency of the evidence then that is a that preserves the dyno both standard of review and so i think there's  basis in the record in this particular record to think that either the government or judge hitler did not understand the defendants as meaning what they say when they said we are challenging the sufficiency of the evidence we think there's insufficient evidence for all elements on all counts and then of course they raised three specific arguments as to why there should be a new trial and the judge denied those and we haven't raised the denial of those claims on appeal  so we do think that we preserve this and i would point you to your two thousand and two on bong case in herrera this court recognized that are imprecise twice both in the text and in the only footnote in the opinion that the defendant in that case had not raised a post verdict motion for judgment of acquittal and that's the difference here is we have raised a motion for judgment of acquittal and i'm not aware of the motion the new trial that's one of the style i understand judge barksdale and i understand that that is not the preferred way to i would certainly not counsel somebody to do that if they're trying to be entirely accurate but there is precedent recognizing that we will give what they said they do that they've argued that the evidence was not sufficient as to all elements of all counts and so that that preserves the sufficiency claims it's made for plenary review in the court of appeals and so we do think that this is a preserve claiming our claim comes down to three things text precedent and the simple proposition that appellate courts review judgment in a criminal trial that means the jury unlawfully dispensing drugs and unlawfully distributing drugs and the dispensing applies to only to registered practitioners and it specifically includes the at the prescribing doctor and i know that my patients and a doesn't really need this for a legitimate purpose that just isn't to code on or something like that and i'm prescribing it to further his addiction that might be at its best but if i know that patient a and even though i use the medicine going to take it down the street to the park and sell it to the people out in the park that's a distribution in the appropriate way to look at this case judge changed my st order response obviously has to be that that claim it's the government's novel textual argument here and it is for close by this court's decision and we it's nine hundred and seventy three presidential decision to look at the definition here and decided that prescribing falls within the dispensing bucket and that means that it's not an act of distribution but to even this worse court was to i suppose want to the panel really is bound by that decision but assuming that it was and the reason the government's argument doesn't hold very much water is that it overlooks the fact that we're talking about the definition of conduct  not only unlawful conduct but what the conduct doctors are authorized to do in anybody is authorized to do so it makes sense that congress would make talk about the things that doctors are registered separately to do for  prescribe me medicine and even has some other doctor would have done something different then into therapy or something like i needed to datable that is medically sound and therefore you can't prosecute that doctor for doing that to the dispensing you have to once you get past patients and you're just talking about the people in the park why isn't the doctor also liable for that under distribution prior to the answer is it depends on what conduct the government is actually trying to prosecute in this case at every stage of both trials it's very clear that the evidence in the argument that the government made was geared towards arguing that dr cragg was guilty the moment she wrote prescriptions and so these definitions tracks that they are they are looking at what act is actually occurring and so when the act is a prescription that act the act the t s a tells us is pretty is a dispensation now if what the government is attempting to prosecute is a doctor who is willfully and intentionally writing prescriptions and then intending to also be involved in the later diversion of those drugs maybe because they're getting kickbacks or whatever other reason then that would be a situation where you're talking about a disease that we have here but now that we have you are going it arguably it is what we could speculate is here but it is not something that the government put on sufficient evidence to support that again it is very clear when you read this record at both trials that the government argument was it is an act of prescribing that is illegal and that is why these defendants are guilty and i do just so that way i can get to it on rebuttal want to make crystallize very quickly our point on the verdict issue the bottom line is that the judgment that here for this court to review is the jury's verdict announced in open court and that verdict was limited to the crime of unlawful distribution and so it is not appropriate for an appellate court to look at the evidence in the record and say well we think that there's enough evidence for it to the crime of dispensation and then change the jury's verdict which did rest solely on distribution ok thank you may please the court the trial judge in this case should have kept your are in the fourteen member jury pool or declared a mistrial instead he dismissed or our position is he had no authority to do that so the court procedure the jury was not selected at the time that this event occurred the one we're challenging it's began it was there and his courted in when the jury retires goes back to deliberate after he takes the fourteen people who survived challenges for cause put their names in a little container and then the case manager goes out to and those two hundred and fourteen dollars service alternates that had not happened yet so we did not have a selected jury at this point so we're really we're still in the jury selection phase that's important because obviously what you just asked st question we asked ourselves when we started reading this convinced and i think you should be as well only names out of a hat i mean once you put in the names in the hat i can see how her back to a lot of that one of the neighbor in the hat pulling them out i don't i guess by that time i'm just trying to understand what you're saying on that you're saying that because of the judge's hat technique that are fast and challenges good on till the twelve are finally seated in the deliberation room that is correct and that is our position because obviously if something happens between the time of want gear and the time they go back and and and start considering the case something untoward happens then that is a jury selection issue and that's why we have  the elevator to have this conversation and get rid of this juror because she was african american that's your argument i don't know that we we would take the position that they intentionally did that he intentionally did that that's our position the agent to misconduct was by the agent wanted to get rid of someone who was african american that's your position and that's the underlying facts and are going then we believe that he intentionally s her he waited for her everybody else was gone she came out of the restroom she saw somebody out in the blue shirt get up in follow her out and then jump into the elevator right before it closed and then she said he leaned up against her and start talking about the case then when she said that she was able to be alert and she didn't think that he that he she understood what her duty was she gets out of the elevator he gets out of the elevator and followed her out of the court says i can't be fair you exclude them their race is not the reason you excluded them discuss they could care ok so that's my point getting back to this your argument is that agent was seeking to exclude her because of her race either that or convince her that she should not thought of this preconception that led to bachan in the st place that minority gerard's would vote for a not guilty verdict if one of the members of their particular protected class was on trial in this case we had to so you're saying the african american agent wanted an african american juror to be taken off the jury because she's acting or that's her position sternest either that and we don't know because we can't read his mind either that or he wanted to make friends with the ultimate jury because at that point when this happened we didn't know if there'd be one african american juror seated two african american gerard's seated are zero it all depended on whose name got pulled out of that but what it did do is it eliminated fifty percent of the possibility that there would be a member of the of the appellant's race sitting in the jury and we know that john is not entitle necessary to certain specific percentage of  think that that was done by the fact that they're all everybody involved in this incident here is of the same race it's a minority race and i remember when batson was the one of the purposes of batson originally was to correct the then existing perception that prosecutors throughout the country state federal and military more than simply the exclusion of a person has a certain race because otherwise every time a lawyer excluded someone of a particular race they would in and they would be charged with bass and that's not enough you can have other reasons so this guy can just be making a conversation with someone on the elevator maybe many functions and isolated i'm not saying it's appropriate when he did but charging it is a racial point you're making that assumption solely because of her race you're making the assumption that he was trying to exclude her or her race gender batson there has those and pickling singles out that black but then soldier and starts talking about the case during the elevator when it's just the two of them and then when she tries to tell him to go on she look starts looking a person she gets out and she goes out  are out there that's a spectrum and the different version of the story and so the judge can decide what he thinks it is the real story so if your version is trying to make him you know stopping her to try to get her to either be excluded or to rule against a person of african american race and then judge her the agent and you point and look at it a different way affect you're really piling speculation on speculation that's in a way all grades well if it plays record that the what the what the transcript shows is that they start talking about whether the trial was boring and how long it bonded to the evidence that there's a racial overtone under bacha and i think that the that the judge's inquiry obviously the judge thought that she in this confrontation if you responsible for a for the united states rule twenty mind see trumps all the other requirements on the room when you're on that are cornfields and beards who don't know how many years you know i don't know the answer to that your honor  offhand i think that's the court is aware beyond the rule twenty nine the issue we had raised the possibility that plain error applied for a different reason wanted in addition to the one your honor mentioned i've always understood that the defense after having raised a rule twenty nine argument the close of the government's case had to renew had to renew the rule twenty nine motion either of the close of all evidence the defense puts on a case or an opposed verdict rule twenty nine mr howard has identified a couple  footnotes and some older cases of this court and one out of circuit case and seven circuit but i guess i would note that in both of those cases it was in this court cases he cited none of them discussed the principle we mentioned which is a fair notice to the government in a district court in the the effect of the government has failed to prove each and every element of every count down a reasonable doubt that was not a general statement saying they proved none of those they had neatly followed that the very next statement saying the been cooperated by reference their earlier arguments so we thank judge barstow that even if the older cases in the footnotes that mr hauser cited would generally be sufficient in an instance where the defendant raises specific arguments as to specific counts read incorporates those by reference later on and then issue in the case that can avoid a possible error that can avoid the introduction of a possible error in the st place and here if the defendants had intimated in any way that dispense versus distribute was a major issue for them and they that precede the problem under last week which mr howard responded quite promptly i should say and again zealous case that was a situation back in the ninety's the courts encountered was relative frequency after a major supreme court decision that changed the proof requirements under frequently prosecuted government can indict more broadly and then struck a narrower theory of the case and he would say for that reason they should raise this as an error but again if they thought that there was a dispositive difference between these two statutory terms and they had to raise that in any point in the case  defense lawyers not to do a certain thing in terms of preserving arguments i would probably advise prosecutors to track the statute in the indictment to ensure that there jury charge aligns with the one the supreme court addressed in us versus more but i think here what court and prior jury instructions that had been given in kill mill type prosecutions in houston by judge sitting there and i think those will align with some of the instruction given in the evidence case that later reached this court as well so i don't think it was a in any way an intentional waiver or a strategic move to forego our ability to rely on any particular statutory alternative and so i want to jump back in just a moment to what we think the fate of the law do want to stay on this point for one more moment which is that i think this discussion i hope flushes out why if the court has any concerns at all about our primary submissions in this case about what the state of circuit law is regarding distribution dispense you do have an element so you have erroneous jury instruction in one case extra element another there say well this is a special case and i would agree with them if that was if we are in a situation like the griffin vs us the supreme court case or the to get a case in the  brief those are instances in which the judge made a determination as a matter of law that one of the statutory alternatives was insufficiently proven and took the issue away that's that's that's quite different from saying this is in the at the time the government rested its case or the time the dr craig rested her case the evidence is sufficient at that point judge that you're not finalize the instruction and at that point when he if he had ruled on a rule twenty nine dollars motion he would have had to measure the sufficiency against the indictment and not the instructions and so it's strange to me to think that evidence was sufficient at all those points in the case and became insufficient because of something that happened at the charge conference or the of the jury  judicial finding that the evidence is insufficient or some kind of strategic intentional on the record waiver by the government to turn to the merits quite quickly yes let's talk about the evidence so assuming was going to use the drug rather than easier for a legitimate purpose if that is a different concept from prescribing it to a patient who's going to take it down the street and sell it in the arts is that a fair distinction or do you disagree with that i don't actually a broader role for distribution we think that despite the interesting and st principle kind of textual arguments mr howard has raised that harrison really established a distribution is appropriate in either of those cases that it can be used interchangeably with dispense in practitioner cases that was the holding of harrison where the doctor was charged only with distribution distributing unlawful distributing drugs by means of prescription for  outside the course of usual professional practice and with no legitimate medical purpose so we think that distribution is really interchangeable with dispense in practitioner cases under this court case law but if the court felt the need to grapple with the text and said we don't think this is just decided that we think that a fiction your honor as has drawn is probably the viable one and one that would suffice to preserve the convictions in this case that's what i was going to get to next so assuming argumenta that we think that congress doesn't just put faithfuls efforts to promote that program and also the testimony from the former facilitator the former crew leader former drug dealer davis webster who's a cooperate and informant for the government in this case fernandez another witness but i guess the focus on one particular piece of evidence and conduct i would refer the court to the store credit program this was the piece where the business cards that the government introduced into evidence in which the the clinic gave out sensually replacements and credits for patients that were excused by the clinic they didn't have the right prescription history or because they disobeyed  cell phone and no a trying to vice rules the clinic had when that happened the patient didn't get their money back the facilitators who had bought the prescriptions for the plaintiff instead got a credit that they could use descendant somebody else off the street to pick up those drugs for them and their lives and hayes testified that fateful or dr craig one of the two had to approve each of the four credits the star credits were reflected in the expense reports and notebooks that were introduced into evidence and i think that alone really strode that the defendants were fully aware of what was going on one last piece of evidence was the video agent grants a video when she went in as an undercover agent and it showed the state of affairs in the  what i call our back up rule our nd argument that we have to show some kind of diversion to a rd party there is a little harder as to the individual agents but i would agree with the point defenseman reply brief that we didn't  as much to the the books in the documentary evidence but but especially if we're on the voice of evidence review miscarriage of justice review here your honor we have testimony from erica hayes that nineteen of the ninety nine percent of the clinic patients at that point in time or link to the cylinders and then certain attributes and certain characteristics of the dam's dr craig performed she didn't tell agent graham or davis webster when they went in there for their exams how to use the drugs and the that she was the bad doctor this is just her m o s to all patients but they could certainly draw the inference the prosecutor urge which was that she didn't care and she didn't need to tell them how to use it but she did not think that they were actually going to use it she knew the pills were going to somebody else by not hearing how the person is going to use and she's not expecting them to use it that that's exactly right here i think that that's the inference the prosecutor urged the jury to draw in in closing argument this is like a plot that normally would want to know how to lie and lie and it was the separate the arguments we feel confident in the reading of the statute you're articulated but we don't believe that the court has to reach it under harrison and the case that we've described in our break which we do think draws a more general line between that this is a more house has some time left and he may cite to the as not case in th circuit as net those states joseph and the issue as not was just whether doctors can ever be charged with dispensing not whether they must be and if this court is looking at this case to the lens of briefing and we think that supports our argument here that bats and simply does not apply to a judge's striking of jurors that isn't to say that a defendant can establish an equal protection violation if the strike appears to be substantially motivated by discriminatory intent but i don't think it's possible all to read discriminatory intent to judge it mirrors action and excusing the juror and as far as the agents conduct i just don't know of any cases judge barksdale asked in which an agent's interactions with a juror had been deemed to violate batson they could of course create the kind of problem getting that would i guess give rise that's correct your honor and maybe maybe this ties into the point about preservation but if while the word that's and was mentioned a trial no one asked for a kind of full blown inquiry right i think the parties tried to conduct the stuff out any kind of discriminatory motive as the do want to push back some of the notion that the that it was clear and inferences can be drawn that the agent acted improperly i actually think if the court looks closely at the two accounts of the agent at the testimony of the agent in the short of emergency where the person falls down or something but that in a normal circumstance i can't think of a basis and that's pretty well known to anybody involved so i can't agree with that but i don't think yes that's that's fine because we can live with that as well but i was just saying that i don't think the agent actually if you look at his testimony or the jurors testimony i don't think you can infer that he was shading what he did in any way i think the account li exactly and mister mr zimmerman made the point earlier that there was this delay the juror said that she was fiddling around in her purse to try to avoid interacting that would be asian and that actually explains why he ended up that have been that they're trying to draw aren't borne out by the record judge that nervous for milieu with the courthouse layout for example in a way that i am not and this court may be but i'm not i think was much more well positioned to know the effect of this the severity of it  and turning away from babson toward the rammer part of mr zimmerman's argument which i know he mentioned but didn't really get into we think under the render a framework a district court has discretion to excuse a juror as a lesser remedy and as a less and less step than mistrial when the one of the parties called into question jurors impartiality and the judge ascertain that the juror hasn't shared any information about this outside influence with circuit judges authority why broad discretion the courts are given in handling matters of outside influence extends as well to excusing a juror rather than declaring this trial and happy to address other questions the  judge haynes just a couple points on rebuttal our interpretation of these definitions is not that a doctor can never distribute the point of our submission is that you have to look at the conduct that the government is seeking to prosecute and so when that conduct involves things that fall squarely within the plain text of the definition of spin then that is the end the corollary to that is that the plain text also defines the term distribute as anything that is other than dispensing that nice fairly shows that prescribing is when when prescribing is the theory prosecution that's the basis and harrison i curse the court to read the opinion in error it does not cite the text at all it does not even set forth the text it simply distinguishes flee from the facts that were at issue in that case and so the very interpretive point that that issue here it also said that even its lead didn't bind us we would look at the plain text of the statute and conclude that this is what it means that legal out it right and so it would certainly be an odd circuit split for this court to say distinction that the government is referencing then i would lay down to that but i can tell you for a fact that it not in that that opinion the union addresses this point on in one paragraph and one footnote and it just simply does not deal with the text in any way and the context there was a doctor who was writing prescriptions to or fake patient who was making up names and then other people were going and filling those prescriptions so at the very least there is a case that they patients are not  the sense that they don't exist but they're fake in the sense that they're not really patients no it's not judge james this is a case where there were people who came to the clinic and the doctor was prescribing mr miser it's not ninety nine percent i mean erica are one of the witnesses does say that but the other witness certainly said that was between seventy and ninety percent of the witnesses are the patients at this clinic but that the overall point is that the conduct the government was prosecuting was prescribing here and i would urge the court to read the government read been as a matter because that brief tracks my argument on the statutory point almost identically and i it certainly is telling that the government  has two separate cases in federal courts of appeals within five years argued that the exact same language in the exact same statute means two different things and i think that what's happening here is that the government is attempting to interpret the statute to fit the facts of this case and i understand that but the facts of this case are not going to govern in all other cases in the plain text of the statute is clearly making a distinction between the two  s and judge change are also exactly right about the supreme court from such a decision what was going on there was an additional element was added but at the bottom line is that the jury actually considered everything that was in the indictment that they that the verdict rested on in this case your answer to the question of whether this is really an attack on the jury charge more than it is on the evidence my answer is that this is a properly constructed jury we couldn't have been objected to this charges being  crime of unlawful distribution there is not evidence of information then yes you can very soon be asked to answer a question that there's no evidence to support that's pretty fundamental principle sir but that's not the defendant's does it mean if the government failed to show f d i c ensured it's not the defendant's duty to go ahead and point that out and say hey you might want to make sure that you get a witness up there but you said you can't submit this question so there's no evidence of it i think that the government the government's misreading that portion of justice thomas opinion he was describing the reviewing court's duty is to decide if the case should have been submitted to the jury is that sufficient your view is not about whether at the moment the case was given to the jury it was appropriate to submit the case the jury and i will if you'll permit me judge jane just to make that to say that again it's not relevant it's not relevant whether you know i'm saying  jury's charge of course it's relevant but what i'm saying is on appellate review it is what the appellate court is doing is determining whether or not the evidence was sufficient to go to the jury it is not necessarily about whether or not at the  time the fact that the evidence that the charge might not have been decided at the time isn't relevant to the appellant appellate review and i will note that in this case it's just factually incorrect this jury there was a st trial here and before the nd trial the judge entered an order saying all of my rulings in the prior trial remain in effect and that includes the jury charge and so in this case the government's the verdict of this jury is what controls and it should point the that was a case where a juror who was feed filipino attraction told the judge he couldn't be fair because the defendant looked just like his uncle who was also a filipino in that case was dismissed because he couldn't be fair in our case in this case before the court today the juror for under oath she was one hundred percent sure she could be there trial if they found your tampering trial court replace the sitting juror with an alternate just basically the more similar to what we're doing here and any kind of that issue though this court a long ago is nine influence my decision on the last port security also or whatever it was contacted just we don't need to do that we've got to attend to the alternatives and we've got fourteen people in the box and so we can do this of the trials ready to go into the jury deliberations just being cautious now but you have to determine what the effect of that it were only if ruling in our opinion is on the defendants  influence the composition of the jury it took out fifty percent of the potential black your arse it could have gone to that set sit on that jury and i said that's not what the way it's supposed to be exposed to be done and i know that will then i can remember was just change our or your honor that was asking us about basically what i interpreted a question what's the burden of proof showing that race was involved and i want to reemphasize  sort of just ignoring the argument we made that the juror who got excused got dismissed had a constitutional right not to be kept from jury service based on an improper reason and we believe that that is another here's the bottom line these two african american a government spin not get a fair trial when their own government rep representative of the of the prosecution contacts the j potential juror are and succeeds in getting very single data targeted and removed from the jury that's going to sit them on judgment of them because of misconduct by the government and