for quite some time now and it seems to work so we will get underway this morning i think i have experience counsel here to the trial enforce our traffic light substance as outside the course of professional practice and not for legitimate medical care at the government used facts not in evidence and actually facts contrary to the evidence in order to convict him so st let's talk about i'd like to talk about the government's improper remarks st during the cross as dr warfield she was actually the defense expert but had previously been in the government acts government told the jury that dr warfield had previously told the prosecutor in a conversation outside the presence of the jury that under no circumstances is it within the scope of professional prejudice not only from misstatement but then from what the prosecutor went on to say in closing where you repeated this over and over again in closing the government made at this precise meaning of prescriptions the main issue in the case not only was the presiding prescriptions the main issue but also dr warfield's opinion that supposedly resigning prescriptions was outside the usual course of professional insinuations and especially assertions of personal knowledge are apt to carry much weight before getting to the actual statements in the closing i want to quickly mention dr silverman the government's expert and dr silverman even in correct legal opinion that there are criminal penalties for violating these florida administratively laws and they're not i don't think anybody disputes that and by the court and the government relied on this improper opinion in closing telling the jury that it was a crime to pre science scription when that is not what the statute says so the government  not asking him for a legal opinion it was asking basically how these florida administrative statutes work but regardless once the question was asked and in correct legal opinion was given it was incorrect what dr silverman was saying so at that point defense counsel has to be able to correct the record defense counsel told the court and the government that it was incorrect that this is when it gets what the administrative statute and so again at that point it becomes evident year error to not allow defendants to correct the record and then again this was a real light upon inclosing by the government so the government stated in closing that the main issue in this case is presenting a prescription if documents gave the medical systems a present prescription and it is game over and then the government told the jury the doctor were filigreed what you heard from both so what the government said there is no dispute about is that precise prescriptions outside the scope of professional practice the government told the jury that both experts meaning defense expert dr warfield and its over again in her testimony that she had concerns about precise prescriptions but she still believed the documents it was practicing within the scope of the usual course of medical practice she said it three and sixty two in her testimony nine hundred and nine one thousand in two the government claims this could be maybe a fair inference from her testimony because she did say that medical assistance should not have been given in blank prescription but again it she listened to all the testimony she made very clear that even though she understood that there were creased signing prescriptions which concerned her she still believes that document was acting within the usual course of professional my perspective seems to be overwhelming with respect to your sufficiency of evidence argument you got i mean the medical assistance testified against the doctor there was a sting operation were an individual went in and got a prescription for no medical reason the doctor i think is unspirited gay people these medicines without examining them i mean you know i get your jury argument but it just seems like there's sufficient evidence for that you're to  back why what am i not understand about this yet while you're on are two things to response that i mean st of all when you said that this is just responding to the ad that this is something that's open in closing this is a little bit different because the prosecutor discussed in cross examination a personal conversation that he claims to have with the expert outside the presence of the jury where she told him something to friends and so then he was alluding to this separate conversation throughout closing to this conversation outside of the presence of the jury so i think that that is what changes that somewhat typical argument in closing where the jury can decide the jury's choosing to either believe the prosecutor or not the prosecutor and not that that complicates the matter to the evidence i mean this is not a sufficiency of the there is a sufficiency of the evidence argument that i read of course but here actually because it's a prosecutorial misconduct argument we don't have to look at the evidence in the light most favorable to the government it's review for this court and so the question becomes you can also look at the skull kotori evidence which the jury wasn't considering at the time because the jury was told by the government that defense experts believed that if documents  honor i don't think the video showed him giving the s prescriptions without acting as a doctor and actually show the opposite the undercovers all went in and said that they had problems though what is using that spoke with d and said you had a back problem the documents you have giving blood tests he's talking to the undercovers about lowering his cholesterol he's saying to the undercovers i'm not going to give you an x i'm not going to give you adderall she really is acting as a doctor again and also the medical assistants you can see in the video are doing things behind documents years back so one of the undercovers says to one of the medical assistants that she wants adderall and the medical systems and course documents agree with that were feel them or spams i believe what i said was i thought those medical systems were practicing medicine out and then you know they should have been given plenty prescriptions to prescribe opiates to those patients accordingly having people that know more about those that do but you see these cases over the years and in another life i used to work with the medical licensing board here in georgia  when i worked at the attorney general's office and you know it's always seemed kind of at a wax in the you know to to ask a jury to decide what  is the you know what's a proper medical practice you know does a medical or license a board in florida do anything about these cases or you know it seems like we would solve this problem by just taken the you know i think her approach is this pretty compelling you know these are paying treatments you know practices are very difficult  you know a lot of doctors wanted more and do you know oh a lot of the doctors get the trouble but but the end of the day you're you're the question put to the jury is was this doctor rated so yes you know there was a state investigatory agency who was involved in licensing doctors as well the dea was involved in licensing doctors to fill prescriptions that were both involved in shutting this guy down so that's what led to the prosecution right but i mean never shut him down i'm not that why is he was he is that's correct because at that point after i mean his office was raided and he was arrested in this prosecution began  this was just a straight up credibility determination that the jury had to made you have the medical assistance saying the doctor was the one who was responsible for all this you have the doctor saying the medical assistance for the ones who are responsible for all this with respect to jade she said i just didn't know my receptionist didn't add i'm glad you brought that up i am speaking only for myself i'm pretty comfortable with the sufficiency of the evidence but i was a little bit concerned by the late breaking expert disclosures can you explain why it took so long after the after the request for those displeasures correct correct yes that's correct that's right going to best major question i believe in early now do you know why why it took so long for those experts not developed yet or was there another reason would like to sort of begin quickly discussing the late disclosures in response to the judge grants question in the cross examination of dr warfield's the government explained  that is important but defense counsel was not able to obtain those bills in the short time so they were left in cross examination with dr silverman's explanation which just was while a different clinic did it i didn't know about it but they weren't able to evaluate that  t they weren't able to bring that up in a daubert hearing or uncross and similar we while the government had told them to slew is that there was a wrong injection the doctor silberman did they weren't able to get the file from the board of medicine until cross examination during trial and in that document being learned that it wasn't just a wrong injection that dr silverman had also modified his files which again changing files a minute miles is very important in a medicare him but also in cross examination and as judge brasher said i mean if this was a credible belittle determination between these two experts and anything that would go to the credibility of dr silverman was highly relevant i will say however when we talk about this i want to turn to the prejudice argument a little bit because it wasn't necessarily a credibility to germany should based upon only judge i'm sorry only on dr solomon and dr where phil because the closing that the government sound mind well again i don't think the jury was given the chance to make their mind up here because for the queen at the prosecutor asked the question to dr where philip said but did it didn't you tell me right which is a conversation he's claiming to have had with her outside the presence of the jury that you believe under no circumstance is precisely prescriptions within the ordinary course so he's referencing a conversation that a prosecutor who you know has more esteem with the jury all the cases of have shown i mean referencing a personal conversation outside of the presence of the jury and saying that she said something else and then he's telling the jury over and over again in closing that she didn't see this thing so i don't himself into it and it changes the equation and quickly i would like to sort of address the way that we discussed the evidence in this case the government was discussing you know that documents you didn't give thoughtful care but that's  the standard the standard is whether or not the doctor actually acted not as a bad doctor not as a negligent doctor but as a drug pusher and if you look at these you see videos and all of the testimony it's pretty clear that he was still acting a doctor i mean this idea of these fistfuls of cash that being cash being patient is wrong two thirds of documents yes patients had insurance it was only a small part of his practice that were cash pain patients and dr office or at other pharmacies and other pharmacies are big and you know thank you we have your case and appreciate the arguments