guilty i don't know if you put guilty to all charges or is one of them i think he was able to avoid prison time and dr pitino took his case to trial and i think that the as my brief demonstrates no secret that we think the excluded because i think not speaking for the circuit but it seems like as long as you give a limiting instruction after you give a four hundred four b that that washes away i think in this case it's not  story of the current matter and extrinsic for all for be a fuel use that term is prior convictions that really don't set up or complete any of the story and i think that's obviously what we have here this california possession where he would dr pitino was charged with delivering h g h to an undercover agent in california had nothing to do with the underlying charge here this one he was sending it sending the material to a medical doctor in missouri and what mr memo's was doing that he was prescribing it to his clients to his patients and and i think there's some question mark even how much dr pitino knew about that and i think there's even some better question i o what is duty and that regard and this the transactions were not sophisticated isn't there some relevance in the sense that it was the exactly the same controlled substance and not to his knowledge of that of what it is that's an argument i haven't heard before it's not so you're saying it's not because it's an exact crime which they say it is which is there's no i mean there's a drug that that could have legitimate uses an illegitimate uses correct so i mean there's no question that some would disagree with your honor when he was vetted he didn't stipulate to that knowledge judy he legitimate purposes so when we use that term drug in these type of courts i mean i know the many times it is a fighting issue is did what did he know that it was being used for improper purposes right that may have been the fighting issue but they still have to show the element which includes that he knowingly possessed h g h and so why wouldn't the prior conviction for possessing h g h at least show some relevance have some relevance to well for one thing i don't think it's relevant if he's possessing h g h in the country of mexico that he's holding it for illegal purposes i understand that ok so but that's a different issue but in this situation i don't think even the government did his missouri bank account to a bank account in the state of texas under the same names and whatever i mean if we're going to call that sophistication it's hard for me because i spent ten years at a large regional bank to say that transaction is transferring money from mr smith to mr james in the same bank accounts of the same names no use of hidden transactions something that probably happens ten million ten million times a day in this country i think what you're saying the e mail addresses were deceptive i'm not saying where you said they were not who they appeared to be i'm saying i was asking is that true is that true is that what the evidence for us i don't think there was any evidence regarding that i wasn't trial counsel but i don't recall anything in the train it was a very short trial i don't recall anything talking about fake e mail addresses i thought the i thought from reading the transcripts the government easily was able to determine who are the owners of the e mail address and i don't think they had any problem getting that from go daddy in the last thing before an out of time is there appears to be a mistake in the  and the fact that the u k conviction was really a two thousand and eight conviction and not a two thousand and fourteen conviction and we believe that goes to the the length of the sentence because even the government made a remark that he committed the the court was a price that it was a two thousand and eight conviction not a twenty fourteen conviction and i think on that one alone it almost makes a very mannerable you didn't it didn't affect his criminal history category well they kind of argue not technically but it was an upward departure and i believe that there was some conversation regarding that the u k condition was twenty fourteen so therefore his  factual perspective looking at the pre sentence report which is docket sixty five paragraph thirty six that was a distribution of human growth hormone conviction not a possession distribution of human growth hormone conviction mexico into the united states back in session was a significant concession for that charge for the human growth hormone distribution count that was count two the government would have to go further and show that the distribution was for prohibited purposes it's going to go to professional wrestlers not the war patients or somebody who has a legitimate medical use so the knowledge was a contested issue a trial for count two what is dr millet's going to do with it here in missouri similarity of the prior conviction if you look at the prior conviction it's not just the drug which is pretty unusual drug human growth hormone it's the math that distribution smuggling across the border it's in the source country mexico most importantly it's the amount of the transactions wholesale not retail and the end user in the united states the trial of events was that the california conviction and ball shipping large amounts of h g h to doctors that's exactly what we see later in missouri the government's theory of the case at trial and we presented evidence on this issue was a commonsense one most patients buy drugs with their insurance card and they go to a real pharmacy to pick them up so this distribution method where the doctor gets wholesale mouse and then charges the patient directly is unusual in the medical community and it's an indication in this case and in the prior conduct that something unusual is going on that was similar in kind isn't it overly remote in time in this was a very old conviction so that was the argument in the district court it was primarily a legal argument that was tool and between us counsel argued that there was a presumption against any case that was over thirteen or fourteen years old here that the government would say this conviction is probably sixteen years old because that's twenty fourteen when the transactions were occurring back to nine hundred ninety eight with the prior conviction that life the time this is not the oldest conviction that this court has affirmed the admission of in a criminal case twenty years was the oldest i was able to find and convictions this old happen repeatedly admitted in drug or conspiracy cases which is what the charges were in that other case did the defendant spend any of that time in prison or has here none of the time spent in prison i was unable to find a case with a twenty year conviction being admitted where there wasn't a prior incarceration sentence however the a circuit has repeatedly declined to adopt a bright line mathematical rigid rule and if you balance all of the factors which is what the district court court could have balance the factors differently he could have weighed the factors differently but that doesn't bias cell show an abuse of discretion further the government is aware of the court could disagree and find that there was somewhere even if there was some error that the government would argue that any error was harmless as the court pointed out mr pitino conceded in his opening statement that he had shipped the h g h to missouri the trial evidence showed that professional wrestlers were receiving the drones the government's especially with the courts too limiting instructions and here was harmless there's two other points i wanted to respond to on the sophisticated means issue and the sentencing issue on the sophisticated means issue the court is communications he just used e mails from these various corporate shells are x medical warehouse clinic at swiss mail we admitted of attempts at trial that all of those email addresses were listed by mr pitino on his subscribe in your in your brief on the harmless carried you say harmless beyond a reasonable doubt is at the right standard i think is a slight influence on the verdict i think that's the correct standard i'm sorry say that again i think the harmless  n finally with what's left of my time i want to talk about the upper departure the most important point is that there were three separate departures relied upon by the district court and two of the three departures did not rely on any history the danger to patients or the alternative duty grounds do not require any criminal history whatsoever regarding the criminal history the transcript reveals that the government never took a definitive could be either a criminal history three or a criminal history for counsel for mr pitino is correct that the pre sentence report is wrong it's got the wrong date and that for the united kingdom conviction which is one of mr pitino so many convictions at sentencing since the facts in the p s are undisputed that's what i relied upon the when you say you didn't take a position on whether he least three or four what do you mean by that  you mean but after a departure for the criminal history the sense in the government focused on the nature of the criminal history more than trying to give it an exact score beyond what the pre sentence report writer had done we might criminal history category what did the judge find that he was in before any departure i have to look at the persons report of this sort of two of the why are you saying you didn't take a position on whether he was a three or four i real quick i think he was category one once as he category one or two you don't know your ok nobody knows will look it up go ahead once you're about california conviction he was selling to non doctors that was not the same thing here he was selling to  a valid missouri license after ted moments and second we get to this harmless air i couldn't bring it up in the appeal because it's hard to bring up an effective assistant counsel mr mason a great job but it wasn't harmless if you look at that if you remember the transcript there was a jerk who called the judge the next day and says i'm not really sure that was my verdict and unfortunately for mr mays and maybe he did maybe he looked up to find out what he said couldn't have done but it was a concludes the argument calendar for today