firearms and those security guards were there and he was met by repeated objection and the objection being that his response would cause them to the conclusion that was there after a significant amount of back and forth between the attorneys and the judge happened making it clear to him exactly what the issue was then later on aging gordon was asked now assuming that the jury were to find that appeal mills actually being operated firearms and further and of the drug tracking trafficking activity and those individuals who hire those security guards a law enforcement officers were also using those firearms as sort of the ends of the drug activity it's the it is our position that that's they've been in combination with the prior question asked by the prosecutor put squirrely before the jury a legal opinion that in fact by the security guards arms on them during the time that they were working at the medical clinic that that was sufficient evidence and that in fact the agent was telling the jury that the defendant was guilty of the aw this situation was even aggravated more because when i look back at the jury instructions the jury instructions are actually say at the a t f special agent blake ward who testified about drug trafficking and the use killing and brandishing of a flower or doing a relation to a drug trafficking crime so this probably put before the jury his opinion that in fact the defendants w that additional finger on the scale they would not have felt guilty for your question right which harmonised i mean the evidence was so overwhelming that they had guns and i jury had some issues with it simply because of that note without and without knowing whether or not that because they also found the other two descendants not guilty i thank you for watching subjective awareness of high probability the existence of illegal conduct and the defendant purposely contrived to avoid learning of the legal conduct and mark alaska goes on to say the key aspect of deliberate ignorance the conscious action of the defendant and then we take that all the way to the skilling case in two thousand and nine where the court wrote this court wrote the source of this risk is the potential confusion about the ring of the liberty nest required to convert ordinary innocence ignorance  guilty knowledge in other words the jury may or honestly apply a lesser mens rea or requirement a should have known standard of knowledge and in this case that danger is exacerbated exacerbated and two ways one is issued three which i'm not going to government right out of the box in its closing argument the first thing they say is this case is about you know for me once shame on me shame on you fool me twice shame on me implying that i mean  it your position that that there isn't any evidence of a deliberate trying to be blind in this to the situation at all in the record or is it your position that really this is one of those cases where it's not a that that they're saying there was knowledge and there was there and so therefore it's not preprogrammed because it's a case where they're trying to prove their runs plenty of actual knowledge really both you and it is actual knowledge versus no knowledge and it is that there is no evidence in the record that he was taking any conscious steps to avoid knowledge so it's really a combination or not a combination but it really is  so it's an actual knowledge case where the deliberate instruction is inappropriate where we have a lot of those cases and we've said many times that it's wrong to make which keep giving it but we also often affirm those cases because we say it's harmless that and i did not put it in the footnote i mean the court says that should that the instruction surely be given and certainly in my experience it's one of the excluded district courts are going to continue to give these instruction the government always wants to use this is a back up and cases and in my experience some judges just acquiesce that some judges actually look at this court's law but the government always points these cases and say well the court allows  stand before you in arguments and it's argued because the government always goes and how are you prejudiced in this case by the instruction because i think this was a negligence case there dave based on what a good judge told the jury in what the government told the jury they're really arguing negligence and it allows the jury to could possibly convict based on negligence or recklessness which is not the standard and that's going back to skilling that's what the court recognized the danger of giving this instruction so that really is the harm you have the government saying it's a fool me once shame on you fool me twice shame on the case you have the court telling the jury well it's really only about deciding whether these prescriptions were as i said here in response to jail rod and i said in the footnotes because i see this happen over and over again i think it's time for the court to start reversing these cases otherwise here you've got have people like me stand before you an miss it is our position that she had no knowledge of the unlawful purpose of the agreement and that she distributed and dispense controlled substance within the scope of the professional practice with a legitimate purpose which was to treat the clients twenty fifth of twelve to december two thousand and thirteen so in april she's talking to agents from the office of health and human services and f b i agents and she specifically tells them the following that she had been working with the michael anderson a chiropractor that her job with regard to him was to treat his patients needed pain management she was a physician's assistant and she was under the supervision of a nicholas part on the subject of their investigation she told him that she worked three days a week about twenty hours a week and she would prescribe controlled substance to his patients who needed them why does she have pages prescriptions r t filled out for the highest strength of hydrocodone on these non refillable prescription how is that appropriate for her to have these pre filled out for the all for the highest during all non refundable that seems somewhat cash system the agent said down and told her she was not a subject of the investigation that they were looking at her supervisor part i'm sure she was trained that way that's all she knew she she was she started as a physician assistant in two thousand and one she worked for a dermatologist and then in two thousand and six she started working for other people so when she went to mr a check a catch a office she was only doing what she had been trained by nicholas par what she's been trained doesn't it just on its face seem suspicious and so you can't just do it you know you can't be just following orders if what you're doing is wrong and would be abundantly clear that it's wrong  position that she did not know was wrong she was in medical school living in the going working and going to medicals premium she doesn't get paid she gets paid thirty five pounds a patient it she has no control on how many patients come in if one comes in or two comes in she's just doing her paperwork and she's meeting with the patients are the expert testified that it was from having any kind of medicine of this playing out she prescribe different types of pain medicine there was a  milligrams of hydro coating and the experts said that that was within the normal scope of the profession the people and they were in the lobby of the target of morgan and mr murray the only two witnesses that claim that she she treated them so that they were told in the lobby make sure you say your level eight to ten make sure so that you can get medication why are they being coached other than they're trying to deceive the trigger they're being coached in the lobby to deceive the treater you're trying to tell the court that someone who can finish medical school is ignorant to the thirty thousand people a year that are dying in this country from from accident assistant under the supervision of doctors who were teaching her how to do the practice and this is what she's teaching their teaching her and the fact is that was the government they stood up and argued that was she worked for three pill mills seem like a deliberate ignoran will know you're out of what i'm trying to point out though is that that there is no evidence to show she in greed with anything the only witness they had was that mr is is meg way and he said that he believed that they knew there was no one who said she agreed to anything then the government tried to argue that she knew because she was singing jerry reeds and singing his name in the hallway and he called her three times that was part of their closing arguments to try to say she knew when you're on our position is that she was not deliberately ignorant that she was following within the practices she she was not aware that the drugs are being diverted she didn't benefit from the drugs being from the government first of all napoli does not apply strictly to stake the government preventing presenting false evidence it's also in and puts the burden to correct a false impression through the through the bulk of the trial now the government argues that because of other evidence that even if the test one was false and evil was on correct it's immaterial but i and i briefly so that this kind of the court should apply the strip despite of scrutiny in this situation because he the false testimony and correct it goes to the bare integrity of the criminal justice system and i think in this case although it's true that harbored i do think you test what was in the material and then from the person's report isn't the problem that it's not clear that she ever made to buy a statement that would be make your statement the statement trial false because the the the person says they don't know how they got that in the know it's the other two people who were there said they didn't recall anything of it so there is at least some possibility that the notes are inaccurate and as long as that exists you can't establish that she was a liar that day well as a direct answer that i would say that you know what recording these interviews would go a long way to correcting those problems which is something i think might not intentionally be done but here you have a that he actually states legal conclusions in fact the defense counsel use that as a statement of fact when he asked the security guard sam o'donnell for sam donald whether he carried his gun in furtherance of the security job and he even argued to the court asked them over and over again not to get close to the line with these with these agents and we have all this we've written two or three opinions why are we getting close to the lime are we even having an issue first of all that's the question i understand you're arguing a technical argument that it could be factual instead of just legal so it may not be error but if you got all this evidence in your the government and you're supposed to be doing something higher why is it that you're near the edge of the line with these experts in repeated cases these agents it's good that we have all these cases and we say well this maybe is right up against the line or this was over the line why are we even near the line with these agents in their testimony at trial i think in the heat of trial and when you think of the term in terms factually images come out in your questioning that the prosecutor in this case immediately tried to give more fat meat on that statement judge specifically instructed the jury you can reject engine gordon's testimony you can throw it out and you should weigh it against the other evidence in the case and against your teeth and the basis the reason basis that gives for that and the court also instructed the jury that he doesn't get any special standing or consideration or weight because he's a federal agent now is also harmless to you given that the jury was not even asked to rule on that legal question of whether or not in furtherance with matt that the jury was asked  the civic offense of user carried on during or in relation to so wasn't even asked to determine the the in furtherance issue and so by definition giving a legal conclusion on a question that the jury's not even asked to answer i did you we could have applied it for everybody because why was this under the general extant struction where the case against some of the people is clearly that they actually knew there are some people that they're claiming they didn't know but why is this the general instruction because it's not supposed to be given when when the claim is that they actually are and they're going to show evidence that they're actually participating in not that there will fully blind in some way what the court has upheld the instruction where the evidence supports it so it where it's but it's also said that it's given wrongly in a bunch of cases and but we found harmless error in a bunch of cases and so are you saying that as to every single one of these defendants they were all showing some deliberate in that that the case was a deliberate ignorance case against them and not that they had actual knowledge there was a deliberate in that was the theory of the case as to every defendant in this case well deliberate ignorance is versus no knowledge and deliberate ignorance is evidence of knowledge right i understand what deliberate ignorance is but my question is were you arguing that every single one of these defendants were trying to be you know be willfully blind hiding and that someone else is running the thing and that they're all you know as we talked about ms ot that she's doing what she's supposed to do and is not asking questions about it you know so are they all in that situation are they not that three potential yes or no no they were not well then why was that a general instruction as to all the defendants in this case it should have been specific as to the person who was the deliberate indifference person all of them there was overwhelming knowledge that they all had actual knowledge then it shouldn't have been given at all and if there's all the well meaning of actual you're not supposed to give the deliberate instruction we have the cases that say that but when the when the defendants respond with an argument oh we didn't know i wasn't there i stayed in the back room i didn't i didn't ask questions i didn't ask why a homeless person error not to tangle or the instruction for the particular people like mr that may have been deliberately indifferent sorry no i don't believe it was because i think the deliberate and ignorance instruction as far as i didn't know i was doing my job for i've that i've always done working at pill mills versus for o t or for okechukwu i didn't know i just glanced at the surveillance video that i had i looked at these cash logs and saw an impossible number of patients and i didn't know  four that i was writing prescriptions even are not licensed to write prescriptions that were almost universal no hiding so not just wants to be when the person says they didn't know what was going on it's supposed to be when they're trying to insulate themselves from being knowledgeable about what's going on they take steps during the conspiracy or the thing to say i'm insulating myself to be made so i'm not a person who's going to be signed in the documents and i'm not a person who's and so that i can claim that i didn't know it's not supposed to be just when the person says they didn't know and in this case we don't they have they didn't know but we also have i mean that's what they said but we also have evidence of purposeful contrivance as you know all of them circumstances plus failure to inquire and that's what we have in this case if you if you accept the defendant's argument that that's that they failed to inquire and that's just what they didn't know but even if you believe that it was error to give the instruction because the evidence didn't support it it was harmless because of the overwhelming evidence of actual knowledge that the policy of the u s attorney in your your district to ask for this is a boilerpla instruction not your criminal cases no i don't believe th turning to the third issue raised over the sufficiency argument first of all the standard view for her because she failed to object is devoid of evidence i think the evidence clearly shows that there was it was not devoid of evidence of reasons that judge or i was talking about that the note is question that the prosecutor notes that he took to that interview or questionable based on the eyewitnesses testimony that it didn't happen and second he can show that the prosecutor knew it was false because he testify i mean he told he spoke to the district court about all of his he questioned whether or not his nose were accurate when he talked spoke to that here and richie would make a note like that th consciousness if you read it in yes because he was because he was i'm sure he's like i don't know we're saying that and then he taught you only he wrote it and if it had been in the government's favor you would have  and that's not the kind of stream of consciousness that may account for mistakes or miss in unintended statements contemporaneous with the conversation and i were wrong about the right and the agents were also there during that conversation and they did not remember it so you have other people there not remembering it but i would make any person question he also told the judge that you question and wasn't s was to disclose it to vince counsel bring it up for cross examination let the jury decide whether or not she's telling the truth and that's exactly what happened here and given those are two cents there can't be any make you violation but assuming assuming improperly admitted evidence contributed to the conviction we believe there is a reasonable possibility because it all all has to do is contribute to the to the conviction and the we still some of the system that the evidence supporting the gun conviction is not merely was not slow given the testimony from the office manager as to everything that happened with respect to the security guards actually being o also the jury instructions here really didn't help because that that the jury instructions given the agents the testimony about the agent's experience all that he had for everyone we talked about the fact that there was all of this all of the opiate epidemic that's going on the court has to remember that when this office occurred between twelve and twenty thirt  it's much worse now yes but there were tens of thousands of people time even in the back and twelve and thirteen that's also with respect to the deliberate ignorance instruction i evidence there was either he knew or he didn't know there wasn't any middle ground and there also wasn't any evidence that he deliberately can try not to know either he knew or he didn't know and that's extensionally what the evidence  and his or her behalf yes or he was the only one a n a so clearly the then structure should have been tailored to the particular defendants and actually it shouldn't apply to any of the defendants in this  testimony was was very limited as limited as to what happened in the interviews because of some objections by the parties it is the court  thank you ms watching how the next case of the day