issues with your permission i'm going to skip on the issue of did you and the reason i'm going to do that is my coelen has a little more expertise in that area we spent some time talking about it and i'm convinced you know a lot more about this venue issue than i do so with your permission i'm going to support skip that issue leave it to him the st issue was the deliberate indifference charge instruction student now that's a rare instruction and it was given in this case i think can be given but there has to be a basis for it and the basis is some specific evidence that the person turned to look deliberately turned a blind eye and with the phrase dollar gee and some of the case for which is fantastic is a charade of innocen e so the question is what is the charade of innocence that's up a purposefully ringback avoiding a learning of some sort of illegal or incorrect conduct and then using that to protect yourself so so the question is objection made to the deliberate instructions that were in difference instruction there was an objection raised by dr taylor's trial attorney and he objected to the to the instruction and then this leads trial attorney  followed up on that objection also lodged an objection and specifically talked about the lack of a lack of knowledge and specifically addressed the fact that my client didn't testify which is pretty much the basis of my point she didn't testify  practically speaking i guess you could get there some other way with some other evidence but practically speaking i would presume that whether a defendant testified or didn't test probably result ninety percent of those cases issue don't think that can form a basis of instruction the government also points to evidence of the division of labor between miss levy and dr taylor and that's an interesting point but we know f last kid case that the evidence we look at is evidence from lee again that's why i point to the fact that she didn't testify so we can look at evidence produced by a codefendant to support they argue that the evidence of misleads involvement in the in the in the conspiracy would strong that can best be addressed if you look for the record my issue six issue six is saying there is no evidence of her involvement conspiracy if you overwhelming i mean if there is overwhelming evidence of her guilt yes i would agree but that would be irrelevant but i don't think the river will meet evidence of a deal the evidence is circumstantial at best and it just puts her in a bad situation there's no direct evidence of her specific agreement or involvement in d c do you have six more issues yes ma'am problem well yes and no it didn't solve the problem your ten that's true and this is important we tie and the government points out a kid called martinez the martinez basically says hey there was a jury on the jury was a little confused about the charges and th they had some discussions about that and that's not very material and it didn't really mean anything or angry and if it were just talking about the instructions and discussion i think martinez with control and you wouldn't have an argument about premature deliberations but the problem we cases where the eastern district is not the appropriate venue and i know there were other cases so prior to romans but romans is where i think it really became an issue before the court and i know this in particular is very familiar with these issues because two of the of the judges were on their on the romans panel but i think judge costas concurring opinion romans really put the eastern district  tali them back that's i think we're really came to a head with the court and the oral argument for me i'm a tali which i listen to again a couple of days ago is in a lightning as far as the court jury found venue so that's entitle to a lot of deference with the take all inferences in favor of that jury decision and how do you respond i mean the one of these papers involved in the business found in their home in the eastern district so why wasn't the jury entitle to decide that they use their home to help facilitate this pill mill conspiracy that the jury  colleague also and the court reversed that nevertheless but the only distinction between me i'm a tali and this case is what the court points to as far as doctor taylor and his last paperwork home are having some paperwork at their house and also taking funds some of the cash that they typed took in the clinic home with them and then later depositing some of it in some buy located in the eastern district but really what that comes down to is the key question here is is are those acts part of the essential cond elements of this office or are they incidental and so it is a question i know it's not a simple analysis but the question is on a conspiracy to distribute drugs which is what dr paler and his wife are charged with is there anything you can paperwork home are taking the funds home or the funds into buying that is anything other than incidental to to the allegation against them are those just i think when you look at the statute the twenty one u s c a forty six statute and you look at the jury instructions and you look at everything that the government is will require to prove here there's nothing about these little incidental things that the government points to that in any way go to essential elements of the office the essential elements of the office is an agreement  among doctors dr taylor brand is why for you drugs outside normal medical practice and these things that occurred by taking things home really have nothing to do with the essential essential element in the question whether an overt act took place in the eastern district what the object of the conspiracy there was and that's the saying here is for the conspirator or to to to profit and by receiving the cash for the doctor fraud in the prescriptions thank you your honor may it please the court i'm stephen a striker on behalf of the united states i just to pick up where mr you left off which is on venue i would say a couple things that the cash wasn't just coming in this is important in a couple ways the cash was coming back into the eastern district of texas where the defendants lived but more than that it then was fed by them they spent that money back into the northern district and kept the pill mill running by paying their staff paying the richardson medical authority for rent paying paying themselves actually i mean this was their livelihood after all and it was their salary so they're paying themselves in the northern district texas and you know they bring the cash home to the eastern district of texas i think  this is not along the lines of i understand the court's concerns and does causes concerns in the roman case about a conspiracy that centered in indiana many many districts away this was the neighboring district in which the defendants themselves  like in rome and so i get that point but i'm a little concerned about this spending the proceeds argument i mean let's say they got the castle basically a cash business they got the cash they went to the airport and then from the doctor's be what is the eastern district of texas is interest here even beyond the overt act which we do have for all the reasons the court has been been discussing just as a matter of simple fairness we're talking about these defendants where you were going to look like at least from the from the documents they've been pre approved for a loan based on proceeds that they already maintain or retain from this film mill and they were about to open a clinic in the eastern district of texas and alan texas the government this district did not have to wait around until the defendants set up shop in our home district and then started using their pill mill proceeds to further the conspiracy unless there are further questions about about venue i would turn back to  deliberate ignorance instruction and both parties said they expected it to apply just right you're saying that the defendant asked for that instruction in cells and now the initial they initially did in that sorry and then they they initially did give a pretrial and then they did when the district court fine when the district court a gave them the instructions at trial after the charge and there's an off the record charge conference and then there's an on the record one i don't know what was said of the off the record one but on the on the record one then they did object but based on the based on the fact that their their version of the balancing instruction was not given so the way they the statement that dr taylor's now made was your honor this doesn't convey the requisite state of mind i think the district court could have in the the way in which the defendants themselves had included this pattern instruction in their proposed instructions relevant to how the district court would have understood their objection and our view the district court could have seen that as well i'm not including their portion of the balloting instruction that's the problem they have with it in your objection is overruled you won't see anything in the transcript where the court says i  disagree with your argument that the evidence doesn't support this instruction the reason it didn't say that is because the defendants didn't make that argument i think that's the difference let me ask you why would the government vast structure and knowing are legion of taste law that i the st thing i would say is we do view this as an actual knowledge case and i so i understand your honour's concern there i think i think we anticipated and it played out this way i think we anticipated exactly the argument that the defendants were going to make in the the evidence that they would elicit which which they did in ms lee says why didn't i didn't testify so wasn't listed it from me but she did elicit from the government's witnesses and from dr taylor evidence about how the defendant's kind of there was this front of the house versus back of the house distinction that you see in that what we call in our brief a division of labor but i think in dr taylor's reply brief especially new pages for davies or the very argument that they make in support of their sufficiency claims so not clear and i'm sorry i don't i mean i don't know that this was unfortunately on anyone's high on their radar but it is again i do think that there is evidence in this case and because because of that reason we think it was something fair for the government to point out where the defendants say look we didn't know what was going on in our own clinic because we were on the other side of the clinic and we just think that argument can't if the jury if we sent to the jury the jury looked the defendants actually knew now the defendants will tell you they didn't know what we say in response to that is if they didn't know the reason they didn't know was because they specifically set this up not to know you're still allowed to convict them if they stuck their heads in the sand they're not thinking they're not saying  anything i think that's i mean i think the evidence they elicited was that they didn't they didn't know that they didn't know what dr taylor he didn't know what was going on at the front of the clinic he didn't have anything to do with the finances he didn't see what was going on in the waiting room hornsby client and ms lee was saying that she wasn't in the examination room she didn't have the authority to write prescriptions and so she couldn't have known what those the content of the prescriptions was now that's contrary to the other evidence for one thing she was in the back of the house and much of the time she was dr taylor gatekeeper and you'll see that at age eighteen a weight of the record she was she was administering drugs she knew the people failed those drug tests so i mean again  not maybe what the argument i'm now making is i guess i'm bleeding over into to harm of this argument into a prejudiced point that your honor referred to earlier i think that is i think that is maybe just the easiest way to resolve this question so because i think there was enough evidence elicited from the defense i do think this is the closest this is the closest issue in the case as to whether there was a or not it is not a close issue on the harmlessness point in our view because the evidence of actual knowledge is overwhelming think that there was i mean it is a it's difficult because it's not something that applies across the board in every single case the same way i think in each of these cases the court is set in the only case and the and the right to jacopo case that you're referring to i think those cases mention that this is a very fact found inquiry so i don't think the parties always are going to know exactly how the evidence is going to play out and i think the government wanted to make sure to cover all bases for the precise types of arguments that the defendants have made and the way they've tried to sort of preserve their plausible deniability by setting up these what in their view are watertight compartments of the clinic which in our view are not but if they were if they had managed to achieve that to achieve this kind of watertight division between  them it would have been a fair argument for us to come back and it was a fair argument in our view to come back and say the reason you didn't know it was because you specifically tried not to know how could you have not known what was going on under your nose for twenty five months in the other side of the clinic  can i think that's i think that's a fair point but as i say i think that that in this case that's exactly see even though the defendants during the charge conference on the record said nothing about whether the evidence supported the destruction the government made the point to the just the court that the evidence presumed impartial the defendants have the burden of proving that the jury is partial but they prematurely deliberated this is a case where the deference to the district court we think is an abuse of discretion plus because the way this jury misconduct is always reviewed under a under a an abuse of discretion standard but here internal misconduct and allegedly premature deliberation the standard seems to be even higher i think there were three issues mr horns identified three pieces of evidence that he said supported an allegation of premature deliberation here one was juror number ten juror number ten was dismissed as mr hornsby noted but more than that of course he could have directly affected the verdict and he could have indirectly affected the verdict either because as judge pointed out the district or didn't do its due diligence here it did ask every single juror including ten did you have you talked about the case did you discuss the merits of the case juror number nine in some collaboration with other jurors on this confusion about what are the charges that was as you know i think that's pretty similar to what happened in martinez in some other cases which is that they're not discussing the merits they're not discussing guilt or innocence and it's a very high standard that's that's basically what arriola says is the standard did they prematurely decide i think and then the c s those comment s where the c s o said you cannot and the jurors number fifteen and a are the jurors who brought in the c s o apparently commented that you can only discuss the case back in the jury room we think that goes not to the when but to the where there's nothing in that comment that suggests that they could immediately discuss the case and that would be something that would have contradicted what the district court had already and told the jurors that nine hundred and seven thousand nine hundred and eight of the record which is don't talk about the case until the end and york says the presumption is there's again another heavy presumption that works against the defendants which is that we presume the juries the jurors follow their instructions unless there is overwhelming and overwhelming probability to the contrary so and again we don't think they've shown that in fact the c s those other comments and we don't know if the record doesn't disclose whether the c s i was saying this to all of the jurors or just a few of them but certainly some jurors took the point from the  s o that they couldn't discuss the case in the end in the jury room and they were supposed to kind of hold everything in their head until then so the question that prompted all this from the jar which is basically i'm paraphrasing a basically you know what what about whether there was some permissible impermissible deliberations going on right and it's interesting i mean i think in this case the district or did give them enough preliminary instruction to understand the concept of conspiracy i'm not sure why it case law i think if i could take just a moment i know there are a number of other issues i just just to pick one that i think hasn't been fully explored in the briefs because the defendants in the reply brief raised a new point on this which is on the sentencing point on the drug quantity the defendants are talking now about which guidelines manual should have applied and claiming that the district court erred in applying the two thousand and eleven guidelines that argument in our view is totally waives it can't be considered at this point because they raise it for the st time in their reply brief more than that even if the court were to consider it subject to review for plain error because the defendant didn't object below to which edition of the guidelines apply and then one final note about it is under what under either the two thousand and eleven version or the two thousand and eighteen version the defendants are offense level based offense level thirty six either way because there's one thing under the two thousand and eleven guidelines that favors them which is the more lenient treatment of hydrocodone and then two thousand  harsher treatment but vice versa is that the drug overall drug table is lower to levels in two thousand eight hundred dollars in two thousand and eleven and what the defendants want to do is they want to get the defendant the benefit of both sides of that but they can't do that you're not allowed to pick and choose from particular manuals you have to have why the whole book of a man and there's such a thing as the whole book rule under section one b one point one one under the guidelines that you have you can't think the way this court has  referred to it is that provision precludes piecemeal application of particular portions of guidelines manuals so i would just reiterate that point we think that the two thousand and eleven district court didn't if it erred in applying the two thousand and eleven guidelines it certainly didn't plainly are implying either way and i mean i think you could put it this way that the district court in the probation office thought that there was an ex post facto problem because both versions were exactly the same but that that would not have prejudiced the defendant in any way because they face the same offense level if there are specific questions the court has about any of the remaining issues with my two minutes left i would just ask unless the court does i would just ask the court to as the trial went on at the end they threw away there's no evidence so the fact that they talked about the beginning and nothing because what matters is the so we have to look at the end of the in the now on the objection was some discussion in this in the government's brief about well they were talking about the balancing test if you look carefully the objection was to the deliberate indifference destruction and the balancing test of the two different issues with clinton and there were two different issues and those both reports are now if she didn't testify there is no evidence that's what he meant by that that's what was done now with regard to the harm issue just a quick analysis with regard to mislead involvement in a conspiracy there was evidence she was a nurse by training she was the office people who were getting prescribed these were then testing negative for taking them which would strongly hints they're selling them well so you're saying is the argument being that she was aware that somebody had not taken their their nothing to do with it and i think the answer's the obvious is that it doesn't hurt to have a backup theory for the jury to go on and i do think the problem that that that we have here is is if the court continues to find this hard on this instruction is given then then there's really no incentive for prosecutors not to requested and fortunately judges are giving it when prosecutors requested and it just it just confuses jurors into finding guilty on a lower standard than they're supposed to be doing so i think the that's the answer to that question now as far as the the venue goes  the the that we were discussing really just strictly boils down to the things that that they took home with the doctor tyler in his walk to home with them the thing that he did once they got home and  i would just couldn't continue to point to the language in the cases for instance the kiko case where the court upheld then you and they say and this was sort of like the romans case were transporting across there for districts and they said that the transporting of drugs or drug proceeds was an essential act not incidental act so i think he have to look at what the things were that were taken home and the things that were done at home and the question is are those incidental to the conspiracy or are those essential acts and and the the same analysis really applies to any sort of overt act question and overt act is only an overt act for purposes of this then you question if it's an act done in further and the object is a conspiracy and again that just really overlaps with the incidental versus essential question so the way i would ask the court to look at it is say was it essential was there anything that these defendants did when they went back to the eastern district of texas that was essential to the commission or the successful commission of this often and i think the answer to that is going to be that whatever it is that they that they did if they did it was not affected or are furthered in any way by anything that they did in the eastern district of texas thank you ok that concludes the argument in this case