good morning your honour's catherine young from the federal public defender's office for the appellant edward original i'd like to try to reserve about three minutes of my time for a bubble dr mitchell challenges his conviction and sentence for distribution of controlled substances  challenges improper expert testimony and jury instructions which permitted the jury to convict him without the requisite intent he also challenges the district court error in sentencing which increases the sentencing guideline range from eighteen to twenty four months two hundred and eighty seven two  the st issue i'd like to turn to is instruction sixteen dr ritual contends that this instruction improperly stated the law and the and allow the jury to convict him without the requisite intent this court held in fine gold that with respect to intent the government must prove that the defendant intentionally distributed controlled substances outside the usual course of professional practice and that the defendant intentionally distributed controlled substances for no legitimate medical purpose the government must prove both intents the defendant may have void conviction by proving the absence of either intent in other words it's not enough to show that the defendant did not comply with the standards of practice or that he he prescribe sudden says for no legitimate medical purpose the government must prove that he had the intent to do so and hear the instructions impermissibly lowered the government's burden of proof by suggesting that only one intent was required the intent to distribute outside the usual course of professional practice according to the instruction given to the jury the intent element was that the defendant interacted with acted with the intent to distribute the identified controlled substance outside the usual course  professional practice and without legitimate medical purpose and so as discussed in the opening brief this instruction was unclear because it was not specified what the phrase without legitimate medical purpose modified  yes it was in fact the defense actually stated that the jury had to find intent to act with no legitimate medical purpose and the government's instruction did not explain that that was an error seven hundred and forty eight dollars so the defendant did object to it and the government's answering brief in fact it tells us that this instruction was defective if the government agrees in its answering brief that the government must prove beyond a reasonable doubt the defendant intentionally prescribed or distributed the controlled substance for other than a legitimate medical purpose the government answer further admits the jury was required to find that the defendant intended to distribute the jobs without legitimate purpose to the trial counsel below i was not your honor you know trial was cleared up by the way the parties argue the case i don't think that it was your honor in the government's answering brief the government argues that the instruction is proper because it required to the jury to find that the defendant act just with intent to distribute both outside the course of professional practice and without legitimate purpose in other words the government adds a word both to the instruction or to justify it and the fact that the government has to add that word to justify the instruction tells us that the instruction is inadequate and therefore the jury was not instructed on the requisite intent now dr mitchell also contends that the district court erred in including the curious dad and determining his sentencing guideline range the p s r held him accountable for only the prescriptions written to the to control the true siestas who were the subject of the indictment that generated a sentencing guideline range of eighteen to twenty four months and we contend in the opening brief that the government was since the enhancement edition of the cures data because the offense level to skyrocket to twenty eight dollars and increase the guidelines range to eighty seven to one away months that this finding should have been made by clear and convincing evidence all the government did was take ten individuals the government knew were gang members and new had acted illegally and analyzed those and the government presented the testimony of its expert dr munching whose testimony was biased and also dr munson when he looked at these assumed in every case that the that dr mitchell had not done the exam that he said he had done and had not made the the necessary test the a done just because dr munson found that with respect to the record and the recording said was not time that in fact that test have been done at an earlier visit which was not recorded dr munson also claimed that dr ritual had not done tested a snuff box but in fact dr months and then later at mit on cross examination that he couldn't see from the angle of the videotape whether or not dr original it actually done that exam so the point that the defense made was that dr munson was biased he made conclusions based upon evidence that was not available to him and on cross examination admitted he could not tell from the record and therefore his conclusions were invalid and therefore the district by clear and convincing evidence could not have found that all the cures data should have been admitted into the sentencing context and i must any further questions on morning are we please the court my name is katherine on here on behalf of the united states i'd like to address the two issues raised by defense and their argument the st was jury instruction sixteen which dealt with the jury instructions for the elements of the offense focusing on this instruction when viewed as a whole the elements of the offense clearly convey that the jury had to find three   st that definit knowingly distribute controlled substances nd that he did so outside of the usual course of professional practice and without legitimate medical purpose and rd t did so outside of the usual course of professional practice and we thought legitimate medical purpose the inclusion of the end makes it clear that both are required not only for the rd element but for the nd as well defense notably did not object either at trial or raise it in their appeal that the nd element was somehow lacking yet the format of the rd on what directly tracks the nd and both the nd and the rd element require argued repeatedly in closing that the jury should not convict dr riggle the defendant because he was simply a potentially a bad doctor or a negligent doctor but not a criminal one this was repeatedly argued closing  in and if in an attempt to paint the doctor as simply a negligent doctor as opposed to a doctor who's practice who has permeated by criminality regarding excuse me regarding the sentencing argument regarding clear and convincing i want to flag that the standard of review here is whether or not the district court committed plain error and here based upon the prior presidents of the squirt and the overwhelming evidence government would argue and i would argue no because of the overwhelming state of the evidence just focusing on what was what was the heart of the government's expert testimony the heart of what dr when she testif patient should receive individualized care individual eyes care as shown through an adequate medical history adequate full of physical exam discussion of treatment in a treatment plan consideration of side effects of these very dangerous drugs could have review of prior drug or alcohol addiction or concerns with appropriate follow up to include verification of the patient's history the defendant didn't just fail to do some of these things he didn't do any of them he ignored red flags references to drug abuse references me joked about selling drugs on the street ignored the two it's yes his repeated requests to separate the prescription so that which is an indication of resell repeated requests to boost numbers of norco repeated requests for says europe which is not a legitimate drug to defend it immediately recognize it as a drug for street sale he ignored all of these things in order to repeatedly prescribe high volumes of maximum strength yes the address at the time the patient got the prescription filled and this was another indicator relied upon by the district court at sentencing which at some of these patients traveled over one hundred miles to see the the fende it and that files the district court actually pointed to the fact that ten of dr it goes patients ten of the defendants patients knew that they could go to the defendant to seek drugs those were the ten patients who were east coast manning testified to was the fact that even when she was seeing misty this for her nd follow visit she pre rock the prescriptions before she even entered the room which is an indicator that no matter what was going to happen at that visit he was going to give her the same drugs that you know of itself is a testament to the fact that his exam table was in fact not an examination table but simply a writing table the council one of the arguments your office is made in other cases i didn't think i saw it in this one was that after some recent support supreme court decisions a case called back holes that the clear commision standard no longer exists anymore the theory being that the guidelines are advisory so why do we need to find certain things by a certain standard of evidence if it's all advisory anyway i don't i don't see that argument you made your brief in this case i take it you're not making that case here that you're correct that is not an argument that we made in our answering brief i'm aware that the government and my office in particular has taken that position in other cases i don't feel authorized at this point to state whether or not we've backed off from that position or do you know we continue to argue that position and other they did make that argument but the point is the jury has to view that argument in the lens of instruction that doesn't tell them they have to find too intense the government also argued that the plainer standard should apply but the application of an incorrect standard of proof to an enhanced with just a portion impact was plain error this court held in jordan now the government also said that dr ritual one of the things they complained about dr brigitte was the fact that he joked about selling drugs on the street and i  wanted to turn to that for a minute because in that instance dr mitchell was doing exactly what dr month singh says he's supposed to do and the government takes it out of context and criticizes him for it in that context dr richard was discussing with his patient jones the pain management agreement the choctaw ritual requires of his patients they have to agree they won't go to another doctor to get medications while dr richard is treating them they have to agree they won't sell their meds or trade their meds they have to state that they're not an addict and that no one in their family has told them that they're jokingly says ok i guess you're not selling them you're actually buying them on the street now it's and then left effort at the joe but it's in the context of trying to do exactly the standard of care the doctor month thing and kid trying to make sure that his patients are