please the court my intention to address primarily point one in our brief concerning the sufficiency of the evidence in this particular case the case is unusual in that this was the situation in which the government reviewed five hundred files that were seized from dr foley's office and came up with ten that they believe were appropriate for prosecution which was a two percent of the entire time patient population  that there are equal or a nearly equal circumstantial support for the theory of guilt as well as for the theory of innocence as set out in us versus castor from the sixth circuit part of these circumstances here was  the expert witness who testified on behalf of the government who i is familiar to this court you know based on its decision the united states versus job recognized he also appeared as an expert in each circuit case and in this inappropriate prescription and prescribing of medications that were outside the appropriate scope but as you point out that came out on cross examination so the jury knew that and the jury could make a judgment a credibility judgment with respect to his as you would say habit of testifying on behalf of the government that history and it does it's not your position that i'm a doctor an expert can't be asked about an opinion as to whether a physician acted for a legitimate medical purpose not at all in fact it would require i believe an expert because i believe it's beyond the scope of what a jury of laypeople might know i think it is appropriate to comment on that but  one of the particular things about this particular case that makes us unusual is that every physician who testified in the case testified that all of the patients that are involved accounts of conviction have a gentleman medical problem and legitimate medical pain as a result of injury surgeries the litany of what these patients are gone through and the descriptions that are offered concerning their physical complications and problems were significant well some of the patients were seeing prescriptions even though they were using heroin or other drugs where there were a lot of them a lot of them were source and they were getting medication from many sources and they were tested positive for other drugs not the ones in more than two days so that's correct well it's the most early in and he had him believe i can recall one well you want to know that that's important i believe the earliest one i can recall was about seven days but i may be wrong in that a signal to the doctor that something is amiss and i believe mr can maybe testified at the trial that that the doctor addressed those issues with him and told him he could not see other physicians and he could not obtain controlled substances from other physicians as it was a violation of their agreement as doctor and patient some of these were addressed i don't think there's no bond i don't think would say that dr coley did everything that he could he had a problem with drugs and the parents caught him injecting controlled substances and multi sourcing and positive test i mean whatever he is well in that particular z a coffin says you know big problem in and i think when and dr tyson i mean aaron tifr testified he testified as to you know how cain full it was frequently he would run out of his medication he would be taken to the hospital and he would get additional medication for a few days i think every really ran out of this many kids and they may have used too much medication for what they called you know that was testimony that there was breakthrough pain and sometimes the pain would be so severe he talked frequently with aaron type of about the issue he tried to address it with him it took time with him to try and discuss these problems and he prescribed percocet which cannot be injected as easily as other drugs and so i think you know based upon the the problem is that the pain of that these people suffer so severe and you're drawing between whether or not there's addictive behavior  with regard to the sufficiency i do want to go off what i had originally thought to talk about for two things first of all is the thought that the united states picked ten patients out of five hundred that's true we did we went through think even think that the prosecutor kay said cherry picked the ten there's nothing there's nothing unusual about that this court when it has briefs and issues that it has to resolve somebody in this court goes through all of those and determines who's going to be twenty minutes who's going to be fifteen minutes and who's going to be ten minutes you pick the ones that are most have the most issues that's what the united states did this time that's what the united states does in all cases you go through and find the ones that makes the most or best case that a jury can understand the set here and to say that only ten patients out of all of dr cole these were addicted and can and receiving painkillers outside the usual course of medical practice is a complete inconsistent statement with what the evidence in this case would be were all of his patients pain related no they were not here ok so this this is not an error  it in the in the in the practice of the investigation of doctors like this there's often times you hear the term pill mill where a doctor's primary if not only practice is pain management that the government never delved into never painted never wanted to paint dr kohli's practice as a complete and total pill mill what we did is we focused on the patients the conduct of the office the frequency issues not only in patien returning to get prescriptions early but for example in with regard to the sufficiency of the evidence there was a hospital professional out of richland morial that testified that once a month every month  memorial some thirty patients would show up at that hospital they would show up to get pain pills when they would show up there wasn't enough room in the waiting room they had to stand in the hallway because these folks were so addicted they did not want to lose their place in line they did not want to lose the chance of seeing the doctor the most telling thing about the medical professionals testimony from richmond memorial was that when she would go there to assist because it was so many people the prescriptions were already written out their patients hadn't been seen the prescriptions were already ready written out in addition to that thirty patients and she was quite clear on this ninety minutes that's three minutes per patient that's consistent with what other patients said that when they would go to dr coley to get a real prescription for controlled substances where they were doing things like shooting up parent you you mentioned your honor the fact that with with regard to aaron typhoon and with regard to the v a that is a tragic tragic circumstance there is no one from the government that has ever said that some of these folks entitles a war hero and he needed to be treated like a war hero he didn't need to be treated like a person who is willing to go to a vending machine to receive controlled substances by a doctor who is going to passing out these drug because it's not just doing it because people are in severe pain well if i think we did not focus we did not focus solely on the money there was a fraud element to this this indictment in the end the jury returned a verdict of not guilty that had to do with the insurance charges as the court knows from from the briefing and the transcript much of this wasn't insurance billing much of this was cash if you asked me was this about money absolutely it was about money the defendant in their brief says that the government misses the forest for the trees i would submit that based upon the in total transcript in this case the doctor missed the patients for the greens he wanted money in this was about finding the sentence puzzling  pain pills and heroin abuse and misuse a doctor who makes the kind of money that dr colby does he pays a ten thousand one hundred thousand dollar fine that does little to them more importantly it doesn't matter now it doesn't solve hundred thousand dollar thousand would be nothin once what you get the reasoning behind you you would you would have thought of a ten thousand dollar fine for some rich guy that was going to that it was a ten thousand dollar fine kohli had a child with autism there was some number of issues that caused the judge to go well beyond the guidelines you know say he have a that's the sort of reason is given for not putting a sentencing a person to prison i don't th family situation make it very often this is not it this is not a violent person and if you and he and he's someone who can pay a lot have a pay a large fine which will send a message to the other doctors in the southern part of illinois that you be ruined financially if you if you do this stuff or you're out of the the southern district has had cases like this before there was cases like this before where doctors have gone to jail i respectfully disagree that a fine and well read this child with a lot to say i don't know this as a father to jail for two years and i don't know that that's true that was an issue that was brought up at sentencing we never followed up on any of those things because that was an issue that was illinois in all due respect to your belief that one hundred thousand dollars would cause a doctor to second guess his money making operation i strongly submit that twenty twenty months in prison would do far more and i believe that that has a much better impact on rich guy white collar folks i think the history of this country in the history of white collar type prosecutions is we find most people who study these questions think that two million three hundred thousand people in prison is too many i don't disagree with that judge and i don't disagree with the department of justice policy on making a better approach to who we incarcerate i think on the facts of this case when constructing when considered with the dangers associated with these folks i decision to prosecute and seek jail time was an appropriate sentence likewise the judge cut the sentence from the guidelines dramatically and the government did not appeal that because we felt that that twenty months of incarceration was something that would send a signal to doctors that this wasn't just a money issue this was something that could take their license and car so what was the guideline range the higher the guidelines now that wasn't brief but i believe it was one hundred twenty months is what he was looking at was  it case with this was a month long trial handling the case his review of the thirty five fifty three a factors and his determination it was the belief that twenty months of incarceration would in facts and the signal that we needed to be chronic incurable severe pain i would not say incurable because some of the folks were in fact duping the doctor some of these folks did in fact have pain i don't know that the pain is incurable we didn't this was not an issue of question the jury was going to have to decide weren't there any directions to the jury that the expert was only testifying about the standard of care and not the legal question like the judge did in that case the and the oh isn't that a better practice for the jury to a direction from the courts and they have a context in which to weigh that and apply it well there was no objections to that process the there was a jury instruction that dealt with how to handle expert testimony with regard to dr parent as he did and has he has done in other cases he did he did not at all ever talk about the mens rea of this the the criminal standard in fact he emphasized hey look i'm a doctor i'm not a lawyer i don't deal with what those type of things all i can talk about is looking at these patient files and making a determination on those patient files whether in fact the doctor had gone beyond or outside the scope of the normal practice of medi so with regard to that i think it's clear that the the the jury certainly understand the instructions all three we haven't gotten to the instructions but the those were not objected to in fact they were jointly tendered on two of them one of them they have they affirmatively agreed to but those jury instructions outlined clearly what the jury had to find also had the good faith had i believe that instructions twenty five twenty fifteen twenty five and twenty six fairly  tell the jury are told the jury the standard and made them aware of what the law would be if i could i would like to discuss one other thing and that is the fact that the defense raised in their brief the fact that  coley cut off three people in the three people weren't being seen by dr goli at the time that the government conducted a search warrant out of those three patients that they say shows that he was exercising some level of judgment and cutting patients off and first of all kind of patients off is not how to deal with somebody with addiction the way you deal with somebody and with addiction is you either continue treating them appropriately or you refer them to addiction specialist with regard to these three the first was charles walton charles walden stop showing up now there's no explanation the record why that was certainly got cold he didn't tell him one could argue or one could guess that maybe i'm guessing he didn't have three hundred fifty dollars to keep showing up to get controlled substances the second ballinger tammy bolger was a person that not terminated by dr foley the first time she got arrested for for forging one of his prescriptions and when she got out of jail after seeing another doctor not liking him she came back to dr cole with to continue giving her controlled substances he didn't cut her off until she tried to o t and did it for attempted don't be he she did not die so that's two of the three that they hold out the third patient is a guy by the name of todd felt camp someone who i think in the in the defense brief points out that he was totally incapable of testifying at trial he was so addicted he was calling he was coming in he was constantly seeking drugs and they were charging him to three hundred fifty and if you made a phone call it was fifty dollars more i submit to you that the reason he c and that's the one he did cut off i submitted to you the reason he cut that one person off wasn't because wasn't because he was addicted or showing addictive behavior or it was in the best interest of him because he didn't farm to addiction what i submit to you is that it became a true cost benefit analysis because it was costing too much of the time of the office too much resources to deal with him on a literally a day or weekly basis and with regard to the question ok thank you i apologize and i think you may please the court thank you for allowing the two of us to split the time on this on this argument i appreciate that i know it's a little out of the ordinary just hiding you had to stand that nobody nobody left  posner i want to start with the point you raised on on the sense we did not appeal the sentence so in fairness i just wanted to illustrate the impact this has had on his family dr coley isn't the marrying correctional center right now his family goes to visit him every sunday they're there they spend hours with them it is devastated on the family i went with them one time and spent the morning with which dr foley and his children including the daughter with autism and they have to go go and sit there and be with their dad and try to have the best type of relationship that they can and they're from of a family whose culture the father plays a very important role that he has all daughters it's been very hard for him he has daughters of a marrying age and he's not able to present those daughters to eligible husbands and it's just been it's been very devastating he is not a multimillionaire he lived and in a nice home an ham is his office building was the biggest asset that the family had and that's subject to forfeiture which is still an ongoing process and it got to the put excuse me got to the point where he had to file a motion f important is it's truly harsh in this case but getting getting to some of the facts of the case the issue of money has been raised a couple times judge mannion and i think we cannot ignore the fact that he was charged with five different financial crimes and was found not guilty on every single one of those charges he was charged with three counts of healthcare fraud for medicare fraud medicaid fraud and insurance fraud the jury found that he was not guilty of those crimes he was charged with money laundering for different transactions of sending money saying that the money came from illegal proceeds it was found not guilty of that the government made much to do about this case being all about money and that the doctor didn't care about his patients and he didn't care about their well being and the only cared about the money the evidence didn't support that the jury didn't find that to be true because it wasn't true he mentions these patients that went to the facility and richland and that's thirty patients would show up there is no evidence at all of those patients were pain patients the doctor had he was a neurologist he had lots of different patients that might have parkinson's or any other neurological problems this is a small town doctor who would go to these little every man to small town going to richland or some of these other smaller communities was a service that the doctor provided so that his patients didn't have to travel all the way to have an amp to get the care they needed some of the patients or the nurse said that some of the prescriptions had been written in advance those were refills that patients who would come every month they would get a certain kind of medicine for their chronic conditions which had not and would not change those would be drafted in advance that we filled out but not signed until the doctor examine the patient there was not one piece of evidence that the doctor in any situation had a pre determined pretty rigid prescription that somebody just came in and picked up without being examined by the doctor so it was not on the it's not on the gaps or whatever it says to refills nets or things we just go to the drugstore and get it they could not do  that so he had to each time they got a refill they had to get the doctor signed off and they had to get a brand new written prescription because these were kept schedule two controlled substances so in that instance they couldn't like my blood pressure medicine i just go and get a refill and after a year or so i have to go to the doctor again and get the process started that's not true with these patients these patients had legally to see the doctor every month so the frequency issue is a little bit of a red herring it's true some of the patients abuse some of them came in a little early but that's all johnny how do you deal with that three minute visit time that average three minute visit time thirty people in the situation is that these are people that have to have a bad back or they have a knee or and mr typhus cases leg had been damaged by an i e d and iraq though those conditions are changing the doctor checks on them checks on their stability has them fill out a lot of information in advance because they're dealing with pain and a lot of the pain a self reported information so we had questionnaires that they would prepare while they were in the waiting room you would be able to see them and that period of time these three minute exams these are not initial this isn't a new patient visits these are patients coming back to get a refill doctors check in on them they would often check their up prescription monitoring program to see if they were getting drugs from outside sources and he would talk about that he would also have them do drug tests from time to time with the three hundred fifty dollars for for for all of his office visit it wasn't as if he'd picked you know people that had substance abuse red flags and said for these guys i'm going to charge three fifty if if you know my mother went there and saw the doctor for her or logical problems he would have charge her three hundred fifty dollars and he would be billed the insurance company or medicare medicaid they only pay what they're going to pay but the individuals who didn't have that and they had to pay well these people had no insurance is that presumption here not all of the people just i mean some of these were submitted i think the charges three fifty for everyone the ones without insurance or medicare or medicaid had to pay three hundred fifty dollars in cash like i think the wall that's an example of people that maybe they wrote a check my time is