we'll now move to case number two of the day number eighteen dash two thousand eight hundred and forty three united states versus lo government relied on evidence from a drop product tampering incident involving a product tampering crime that occurred the year prior to the conduct charge and count thirty eight dollars to prove the elements of calorie a day when the government did this it constructively amended mr l articulated by this court the united states be gomez specifically the court did not require the government provide a propensity free line of reasoning when explaining why the motive exception applied to the kid context in this case and secondly and substantially the court failed to conduct any of the companion rule for a three analysis that is required every time the court looks at a propensity based argument under rule for a for b each of these errors permits this court to reverse mr lott's conviction turning out of the constructive amendment specifically the construct of amendment we have to look at four points because of course objection was not made at the truck court we need to satisfy plain error st was there an air here when factors  trial permitted jury to convict for an offense other than that charged we have an error that's the st prong here we have evidence presented have been charged two thousand and fourteen conduct with the government saying that that goes to prove elements of the two thousand and fifteen conduct and or count thirty eight and that's conceded in the government's opposition and in addition to the government's opposition that's not the only place we see in the reckless indifference pronk we also see it for example at page one thousand one hundred and sixty four of the appendix the count thirty eight once again ladies and gentlemen all the evidence points to you've you've made a bunch of really good points from what's what's on my mind is plain error and i want to make sure you have enough time to address that when you know can you focus on that aspect of it absolutely so let's talk about why the error was plain under the standards of this court and errors going to be plain if the law settled and then as we know from pearson if we don't have facts particular to that case which makes the application of that case to the court's preston unclear so here the lightnin standard for almost three decades is establish the fact that if you bring in evidence from one charge crime to suggest that that proves that conduct that that's enough and that's the standard that's been the clear standard relatively uncontested for the last three decades in terms of why is this not a pearson problem what's different about this from peers and here are in contrast to pearson where we had a situation where the government made various clarifying statements to make sure that the jury understood that whil this other evidence it was not to be used when determining whether or not convict on that count we don't have it here in fact we have the exact opposite the government on frequent occasions emphasized out the conduct from two thousand and fourteen and the conduct from two thousand and fifteen could prove particularly different from what we've seen pearson where we have a situation where both an opening and closing statements the government is explicitly explaining that hey we presented this other evidence three of this other gun but that does not go to prove the charge count we don't have it here and without any type of clarifying statements there's nothing that's going to make the application of the light numeral unclear in our case and we don't think that the government's presented anything other than that in its opposition what you mean by clarifying statements so when we look at whether or not the facts of our case apply to protect the rule st we need to look at what not there is construction man which we you know we talked about previous but then what we need to look at is are there other things that may have remedied this constructive and such that for example pearson where the court said you know it was debatable whether or not a constructive amendment occurred here we don't have any of those clarifying statements from the court we don't have any those clarifying statements from the government so when we have evidence and we say these eighty five miles can prove count thirty eight even though that's not what the indictment says and we don't have anywhere else that explains what other purpose we're using this this material for we don't have anything that would put doubt or make unclear the application in the light in this context and i know i know you've argued you don't think that it that the forty two thousand and fourteen evidence is not relevant to the wire fraud charges in counts one through six right and my sense is your colleague on the other side may beg to differ with that well i would make two points st off st off even if we find that there is some other conceivable relevant purpose for any account that does it cure or remedy the constructive member probably as we see in light and there was certainly a relevant basis to bring in other gun evidence i mean certainly went to you know this criminal scheme in terms of  you know in terms of the on the drug conspiracy or the drug actions that were having that place we know that guns are used for that we know that guns have been admitted for these kind of drug dealer cases there was a relevant basis however when the government  off the indictment does not say that that goes to the scheme of conduct the schema conduct is specifically about patient care reports and it's specifically about the narcotics like that that's the scheme that's alleged is part of the elements that charged and nd you know as we talk about in our reply brief the key point as well is that the tampering conduct does not fit within the scope of what would make sense for a wire fraud scheme in a wire fraud scheme they used patient care reports most of which by the way from two thousand and thirteen before they ever even found a tamper vile and what they did is you make the edits on the reports to suggest that a file had never been used or star that it has been used so that you don't have to return it remember at memorial hospital we don't return used violence or at least not at the time anyway they don't return the use files so if i have the ability to go into the software and change and say that a patient had used it i don't ever have to bring it back that's the way you don't get caught you don't bring back a damaged buyout and we know from the wire fraud counts that if we don't have a situation where the wire fraud element the actual using the interstate wires goes to further the crime that we don't have and we have had cases before as you cite in our brief where are the specific charges of wire fraud that are not supported by that wire emphasize we have a size it's quite a bit in the reply is not only is there an issue with the fact that we don't have the propensity for line of reasoning right we have the court and the government conceding that you know a there may be a little bit a propensity here they didn't go through the actual process of demonstrating that this mode of exception which by the way wasn't even contested at trial that this mode of exception could be found at a propensity for a line of reasoning but also in significantly there was no rule for a three analysis done here at all and why is that important that's important because if the court would have gone through the rule for all three analysis as advised by the court and gomez they would have recognized that this was not a motive case this was an identity case mr lott did not say that whoever stole these drugs wasn't motivated to steal then he didn't say that the person didn't understand how to steal and all those other types of things that could happen for a for b we don't have this is just simply that he was not the guy that did it and as we see in all the cases a simple a simple denial of the charges is not enough to i represent the united states in this matter there are three things that i would like to talk to about today the st is the constructive amendment argument made by counsel the nd is the introduction of four for the show motive that was allowed by judge turned evidence in this case dealing with the well he calls it the multitude of evidence and argument made regarding lots of diction jones and use of painkillers finot does not or palin does not issues before the court were the fact that the government continued to drive home this analysis or argument that the defendant was a drug abuser that he had jones in your shoes and therefore it was propensity evidence that was not the trial i was at we had a final pretrial conference where we discussed during that final pretrial conference of the government might intend to get into for a for b for motive appellant now argues that motive of wasn't an issue because he conceded it well we didn't have a stipulation of that we still had to prove our case and motive and identity are basis for four for b but it is very important in this case we're appealing argues that the government continued to do this we did intend to do that we had asked the judge that we might do that we didn't do that we introduced the testimony of a police officer by the name of robert jones from sparta police department who testified about change conditions of lou after he had neck surgery we did not put on evidence that we had about his withdrawals about his pill use about his addiction the individuals we were going to have to has to fi regarding his drug use we did not put on any of that evidence so with with regard to the four a four b evidence that came in i just simply argue that we did not do what the opponents now arguing was the point of the introduction of the evidence on the changed condition after the next surgery to to either state of ferment of lead to the jury or to make the point to the jury affirmatively that you know he was a drug user of some kind in there and therefore i mean i see that relevant to the identity issue even if you frame it as an identity issue you know as the defense does but what was the point of the change condition and when it's when this trial started out you know on the  the government put on a number of witnesses it was a seven day trial we had two and a half hours of a closing argument off from or came in and testify about a number of things about how the the vials had been tampered with and yes we talked about the extent that that goes to forty four dollars b as far as motive and and drug addiction we never said it was it was the point of the changed identity to suggest drug use i mean it well who cares about changed identity that changed changing behavior appear and absolutely it was a sliver of that that's exactly right in the final for all the things that i counsel argues we talked about it final pretrial conference we did none of those things in trial i mean we have a seven day trial other than the testimony of sparta police officer i don't think there's anything in that in that transcript that would indicate things like withdrawal jones ing abuse any of those those type of types of things the also the appellant also argues that the drug test that was administered also has a limited value because multiple other employees of med star tested positive for drugs that's true if in this case law tested positive for final one tested positive who worked in a garage for cocaine argues it i do want to talk about another thing that was in the reply brief and that is that the government's case was weak that plays into the point error analysis that plays into a number of things and because my crime is is very limited i want to make sure that i go through the appellant argues that both of that count thirty eight and the overall scheme to defraud was weak claiming only documentation errors drug costs and propensity evidence there was not t hospital went back to address and try to determine what happened they found that patient care reports that are entered in the field by paramedics had been filed and jason lout using his administrator access w days weeks or even months later and changed those patient care reports to show that people who had not received fenton or morphine had actually received that long morphine we could have called the owner of med star ambulance an individual by the name chuck kelley he came in and testified and recalled one of the specific gets where a patient was horribly injured and during the course of the treatment clout did show up however he testified that no  morphine orphan was given however that patient care report that was can completed by chuck kelly was altered days later to indicate the phenol had been given there was overwhelming evidence of patient care reports being out  d they're not products logs or how it's logs or documents that go with the narcotics box to show distribution of controlled substances it is the him and tory that is necessary those were falsified he would indicate that all involved federal vials that had been tampered with they were seized at two different times we were facing a trial and we had difficulty with the d n a laboratory the biles had to be sent off to a special testing laboratory because of the dangerous thousand and fifteen those files so we just made a game time decision as it turned out the trial we did have that i do want to i do want to point out that if we hadn't had a count thirty eight all of those files with him and minister because the scheme to defraud included theft and no matter how you look at it when you stick a needle into a vial and pull out sentinel you are stealing it it doesn't matter that it can also be utilized as evidence of tampering and as we get to that the appellant argues and i urge you ever look at this to go through the transcript the appellant argues that we relied upon this evidence from two thousand and fourteen as evidence to convict on two thousand and eighteen he says that we conceded if any fair reading of the government's brief points out that that is just the writer of the brief for the government indicating what i said at trial this was seven days of trial two hours of closing argument i did in fact combine the fifty four dollars and the twenty four dollars vials in that argument and he says that we did that to show the reckless indifference i have that vial sailing he placed those back on the ambulances throughout the southern region he did that knowing that some person who was the most horribly injured out in the streets would receive those vials because make no mistake about it we didn't introduce evidence because we couldn't but just the mere numbers of bias that had been pampered with somebody got one of those files and to think that we needed evidence from two thousand and and fifteen vials were combined and they were combined to be able to show again this reckless indifference which we just heard from a counsel a moment ago that's the st part in terms of whether or not there was the argument just now about that whether or not it substantially impacted him we go through never a research related taking the violence stealing it and not researching is not the same thing it's a deal jay's own guidance that's also the congressional report says the same thing that's not enough so that is significant there ask for the fork or be evidence to your honor's question of identity could go to show identity what i would posit is that the cases that usually look at identity are look at one of two things that i've seen anyway one is modus operandi having used other things that are not that no not morphine not through tampering just having used it as part of a prescription is not a modus operandi for using the technique that was just described to you now and then to when we look at a situation of being able to identify one person over other competing potential suspects we have multiple people here that had been found that point to appreciate i think you