number two thousand and twelve fifty nine fifty eight two thousand and thirteen sixty nine two michael lehman versus united states of america or not to exceed fifty miles per side mr parton for the fa consolidated cases involving mr lehman who was convicted of conspiracy to money laundering conspiracy to distribute drugs and received a seven hundred eighty months or fifteen years we have presented five issues for consideration of this court i'd like to address the first two issues and on the three remaining just have those submitted on the brief the two issues are the testimony which we miss who was the government's i think primary witness i think without her testimony or without her credible some credible testimony from her i think the government's case fall sometime later after other witnesses and had been called the trial counsel in the lower court discovered are was able to compare some of the exhibit records that were in evidence and noticed that those records specifically for a larry goble and brenda global were in fact identical except for the names there was a hearing that was also i think the the trial court also later issued a written ruling and then there was a motion for a new trial and that was also part of that which is the consolidated appeal that the court court found that i think what bothers me most about this argument i'd like you to to address if you would please is that if you had had no opportunity at that stage in the trial to address this question about whether a testimony was false then i think your argument would have would have certainly some more weight but here as i understand it the judge allowed you to recall that witness and cross examine her on these questions that you think then would have demonstrated or more clearly demonstrated that there had been perjured testimony and you declined to do so so it just seems odd to me that having had that avenue available to you get a do over now because you say the government had this obligation to do something that you could have done yourself that's correct and i think the answer to that first of all that there were in the six th medical records for larry goble and brenda global and in looking at the documents and i apologize those while they are in the record they are done a five in the record they were not specifically identified in the in the brief i do have copies if the court would like me to provide those to copy to counsel and to the court or the panel i have those copies but but nevertheless was not found until later the trial until after the was inconsistent this was just a matter i think at that point in time a matter of credibility but then when the when the when the record the medical records are starr viewed and seem to be exactly identical and w particularly tanya still keep testified that the only two records that she ever forged or changed were the two records that she pled guilty to and that there were no weather records that cheap that she was drug addict and some other things that went to her may have gone to her credibility but these are the only two records specifically the only two records she says that i forged or changed or two records that i've played guilty to for eri that's it period the records that we have that we now have and i believe that the the the record in the in the court below clearly establishes that th faxed up the records he said no i didn't i get all that but it seems to me you're you're missing the point of the question let's assume that the testimony was false basically you want to impose a duty on the government to do something because you come into court during a trial and say see look at this something is gone wrong and if you had no other way to address that before the jury i would at least understand the argument but you had the means at your disposal to call that fully to the attention of the of the jury and i'm not being critical of long six thousand records he didn't discovered until even the middle of the trial i'm not arguing you should have discovered it earlier i'm just asking what you did discover it then why should we not think that your ability to call her back to the stand and present this tour and get her side of the story was a prerequisite  because i believe i did the law but that obligation that obligation is on the government now the government was going to do that and to this day two years later they've never contacted tanya that are these records but look what's the deal here and let me tell you why just like let me tell you i'm asking the question were were we i hope should be looking ahead to see what a finding like this would do in other cases and i assume if you try these criminal cases you know that there is perjury committed by government snitching witnesses all the time i don't mean that they're presenting it knowingly and intentionally but there's been every single trial a witness says this and then there's evidence that shows it's really that so what is the standard you would have us impose upon the court and the government to then come in and take some official corrective action every time they think somebody might have lied well first of all there's no there's no contention here or allegation that the government knowingly called this witness knowing she was going to present this was found after the fact was never read it at all but here's what we're asking the court i think the standard should be if this is shown not not maybe in this in the otherwise but if it is shown that the statement is perjury and whether beforehand or after hand is discovered later that it's the government's burden s falsehood or does it have to be material i mean what how do you how do they address that even as to be material and it has to be perjured it cannot be merely inconsistent can't be some bet some of it relevant matter has to be a material matter has to be perjury has to be material matter and so so one more thing one more thing not to belabor this so then basically the trial has to stop and there has to apparently be a separate hearing that tries to assess whether something was indisputably false which is a think is a standard you're imposing and that what that's does the judge then make that stack finding because normally juries do fact finding but the jury doesn't have that i know i understand does the judge then make a fact finding witness you lied government you got a corrected during during the trial in this little mini trial first of all i think it's the the government on once they find that there is there is a perjury is that perjured statement to correct that in the record there wouldn't have to be no bearing whatsoever they just recall the witness or advise counsel our witness lie that's where we are but in this when you have to be a hearing like in this case they don't agree with you but this case they not only didn't agree with this but they didn't even make an inquiry into that but to hold otherwise to shift that burden to the defense if you have a purchase ta after she's gone wait till the government finishes their case and then for our case to call her is our witness that i think first of all i think the jury's going to wonder what it's going on here and that's a fishing expedition because we don't know what she's going to say we we made every attempt to we had the government had total control of this witness we had we weren't able to speak with her she had her counsel the record shows in her testimony her turn it was in the courtroom she wouldn't talk to the defendants to the defense counsel to hold otherwise weak that puts the burden on the defendant to call her in his case as his witness and with to give her some i guess some stand inma think that is proper i don't think that should be the standard i don't think that is the standard i think once that the perjury is shown once it it it's material then the burden is on the government to correct that trial and this is not just a case where we have inconsistent statements by the mess messed up this is the state where we have an actual record that she would have done she had been the only one to do it to change that record the witnesses that said she gave extra prescriptions she's the only one with that ability to do that and for whatever reason when she testified she said no the only thing i did was to and never did any more to that's it  morning your honors in may it please the court nina goodman on behalf of the united states i'd like to first clarify a couple of things in the record here the first thing and i think this is essential to understand is that testified on direct examination by a government that she wrote in brenda global's name on these records this prescription that's in dispute here there's no doubt about that and it's undisputed in the record and that's at page i do number twenty three thirteen twenty three fourteen the other undisputed fact is that the original prescription did come from slight doubt as ms snow testified dr rowland identified the prescription the original prescription and identified his signature on the photocopy and ms snowe also testified consistently that yes that is dr roland the slide bel doctor's prescription so there's no dispute on the on those two facts that she did write in the name she said that she testified that very openly and what she testified was that the documents documents were faxed from slidell where we know this documentary and that she even wrote in the name as far as i can tell how the dispute in this case boils down to whether the prescription was photocopied by someone inside now and then sent to philadelphia or whether miss no photocopy of it and then as she acknowledged wrote in the names there's no evidence on that either way so rather than being a claim of perjured testimony this seems to be a claim that the government because or neither side asked an additional question that would have been suitable for cross examination because no one was aware of the photo copying until later but that is the purpose of cross examination and it's also important to remember that not only was mr lehman's counsel given the opportunity to recall and i'm not aware of evidence that she wouldn't be available the only evidence in the record i'm aware of is that at the post trial hearing on being motion for a new trial the prosecutor stated that he had alerted miss noakes counsel after the judge said well you can recall her he i don't learn it miss notes counsel to be sure that she would be available but there's no evidence either way on that and so this is where an additional question wasn't asked of ms mr leman chose not to cross examine instead he chose to put on this evidence and he did put on this evidence before the jury he featured it he called dr rowland as a defense witness he had dr rowland say yes that's my signature i never saw brenda global which was consistent with the testimony of miss not that he wasn't in philadelphia i don't know how this got to philadelphia and council also argued this extensively to the jury in his closing argument i don't like to respectfully disagree with opposing counsel because far from being the government's primary witness this possible conflict in the evidence about who photocopy the document before him is snoeck admittedly wrote the names on it is not material at all to the government's case in fact miss snow wasn't material in all of her testimony she was in philadelphia for three months in two thousand and five she laughed she went back to slight al she subsequently fired by a company she appears to know later portion of the case she was the conspiracy continues for two more years and until the middle of two thousand and seven and it's long after ms snook is gone that mr lehman tells dr weiss oh don't worry they can't possible have to put all pain doctors name jail you don't think they're going to come from kentucky to get you today and it's prescribe what the other doctors to prince prescribing including methadone and oxy code containing drugs are will find someone who can and so that's the heart of the government's case not weber prescription was photocopying before or after it was stand and so we think that the district court did not abused its discretion in denying motions on this ground i'm happy to address any of the instruction be because there was a clear obvious error i know counsel is relying on his brief and just make it clear that this was the plame era standard and it was absolutely clear once the jury found there was an error in the instruction about whether the defendant had to have knowledge that the fines that were laundered were the proceeds of unlawful activity but once the jury which it did convicted and was correctly instructed on the drug count your conspiracy count where it had to find that he knew of the unlawful activity then there was no question in no dispute at any time a trial that the funds themselves were the proceeds of the clinics and so if he knew that the clinics were operating unlawfully in fact mr leman argued this to the jury in his closing argument that the knowledge element for the two crimes is exactly the same and we would agree with pat and to the extent that the in the air and the but that was not the case the records from him in evidence that we should and if the court would permit i would like to submit those either now or at a later time because they show clearly that she's the only one that could have done this all i'm trying to figure out as you say she only said she did it twice and that's not true so how many times do you say she did it but we know she did it two other time ok now there's no proof beyond that the beyond beyond then the four times right so the problem here ignoring photocopy not to photocopying is she said she only did it twice you say the evidence in the record shows she did it four times right for that you get a new trial yes it among the other things you said yes that's correct so and i to put it in context here for perjury yes perjury whether it's one little bit or she said she did hundred or there's records of one hundred fo equivocally there were two did you did you are you to the jury that she actually had forged more than the two prescriptions that she admitted to as your as the government counsel argued that to the jury and i think made a demonstrative display of the of the prescriptions and the medical record so the only thing arguably the jury was lacking was the government state standing up and saying i agree she lied in that protect and that point no the only thing that was lacking is the government recalling her on its case and saying what about the record here did you lie and if if she says yes i misspoke or whatever under oath i lied to the jury here i think that is very significant and it probably i believe would have changed the result of the case