before judge lodge post conviction and prior to sentencing and that's the competency to be sentenced and also the motion for a new trial based on newly discovered evidence the posture of the case is unique in that if the if the court finds him competent and affirms judge large on that basis then the issue of a new trial comes into play which is a different a different analysis than it is for the co determination i do that the the difficulty in in the posture of the case after i was brought on board is that dr byer had gone to trial on a factual defense basically saying i didn't do  it and absolutely denying everything that the government produced and saying he absolutely didn't do anything and that's pretty replete in the record and that he was selling jensine illegally and not selling pills even though the this council how is this really any different than a situation where and i have these cases where an individual is identified by three or four people who know him at the scene of a bank robbery a just a mere coincidence that it wasn't him he was actually off on another i was in from hawaii he was off on another island at the time only we can produce any evidence of that well that person may have been needed to be evaluated no he didn't he was just lying yeah he was just lying but that's interesting that you say that because both dr lowe and  well that's the point is that is the is the p s a i take it by dr adler said this is not conscious lying this is this is an underlying mental issues and not some kind of fakery that's the difference i mean i've represented many fraud people you know and i've used to work for the federal defenders of eastern washington and i don't know for sixteen years i've represented a lot of fraud people and i can i know the difference between a fraudster and someone like dr byer i represented a gentleman believed he was a nice person who went to trial three times and nobody picked up on that are exactly the same if you walk in and talk to them on a blank completely blank slate without knowing anything about the case they are highly believable and the reason they're highly believable is because they're living in this delusion and that's what dr king you explained to me in your your argument that you should have a new trial what is new about this evidence you need to show new evidence i don't understand how this is new evidence the new evidence is the mental disease or defect but didn't you have that evidence already at trial no i wasn't the trial counsel but there was a competency hearing no that was after the trial and after i was retained the competency hearing did not occur before the trial but it could have i mean when were the doctor's evaluations because i mean the point is his mental state was what it was so why wasn't evaluated earlier because the trial counsel said he missed it this is a and the the d s m five hits this right on the right on the nose when it says people with high levels of functioning intellectual functioning are a lot more difficult to detect in any mental disorder or defect especially when you're talking about neural cognitive disorder because they do have a higher level of functioning and they're hard to detect and that was what was difficult i believe with dr byers case and the only reason that i had any inkling that we may be dealing with a mental disease or defect was because i did have experience with someone else who had a delusional disorder and in my opinion dr byers symptoms  medical evaluations everything occurred after trial so can we go ahead all right let me let me step you back a minute you've said you said oh his counsel said he missed it right so you acknowledge that the evidence was there or you're telling us the evidence was there and his counsel missed it and i would say well if he's you know if it wasn't there then he could the mystic goody made a mistake is what he said he may have made a mistake and but the well i don't know what does that mean but in any event it sounds to me like if that's if that is true and this evidence was overlook by the lawyer or whatever assuming that it's even credible and that's another issue because we did have a hearing here judge logic hearing we did but that's another issue which we'll get to it sounds like a buyer is not capable of rationally understanding the factual proceedings against him because he has this delusional view that it's all a scare tactic and that you're attacking the conviction  we were there ok and you're attacking the conviction on the on the basis that the lawyer failed to pursue this mental health issue appropriately right if we get that far if there's if the court doesn't grant a new trial based on newly discovered evidence because his i'm not seeing the newly discovered evidence you just said that the doctor i presume said something and that the lawyer made a mistake and missed it maybe the focus is wrong though the newly discovered evidence has to be diligence that includes the defendant's input dr byer as reported by all psych psychologists and psychiatrists and in this case says is is that he's maintaining that he didn't sell pills he sold gin saying right yes ok did he tell his lawyer that i believe so i would and his lawyer didn't raise five but the mental health issue your honor wasn't it wasn't discovered that the basis of the mental health issues the multiple blows to the head the traumatic brain injury the things that that doctor buyer just like the in the naval case the defendant didn't disclose that he had been in this car wreck and that it isn't that the lawyers fault i mean what why didn't the lawyer why isn't an ineffective assistance of counsel argument for not investigating why is this guy delusional sons testify his personality changed after the car accident or the accident i don't understand why it wasn't discoverable at the all is evidence existed well it was discovered then the conviction based on a factual defen e is separate from the work up that was done after the conviction and before sentencing that did disclose these problems but that's just like any other i a c claim where we learned later that there were things that the lawyers should have figured out earlier yes but but in competency proceedings the competency can be raised at any stage after the conviction before sentencing but there was a competency proceed and if that's the other and i think we have to review it for clear error and the judge that he's competent yes and what is your challenge to the comp and see hearing after all there was a full two days yes and there were presentations going either way and clearing a neutral expert which is it turned out i guess the judge believe white white where is the clear error in all of that well i think the credibility determination this case is  a lot different than saying you i had and you didn't lie that's not really what judge logic because judge watch except that the entire body of dr adams work which means dr adler's entire body of work was credible so what he's saying is it appeared that dr adler and dr beaver were were being more active helping the defense counsel prepare for examination of dr lowe and therefore i'm going to find that the more defense oriented that's different than saying the lying there's actively supporting their opinions and help and maybe one of the issues that came up during the competency hearing and i'm not an expert in the d s m five so i have to have an expert point me to things is that dr low is saying that he's not  significantly impaired because there has to be a standard deviation of minus two below the mean in order to have somebody be significantly impaired when in fact the d s m five for mild traumatic mild neurocognitive disorder that part of what the judge said is i've observed this guy and i think he's confident so that really isn't about the d s m it's that he he didn't have the multiple meetings i had with with dr buyer to to get a feeling for who what this characteristic of somebody who suffers from neurocognitive brain disorder i can cite the court to that to the to all the i think the d s m five is the tool that has to be should followed in order observation of through the whole trial right we also have i believe you correct me if i'm wrong testimony from other doctors or at least one if not more who said that they had interacted with your client for all these this period of time and he seemed perfectly rational and fine yes it's not true that d s m five indicates that because the mild form neurocognitive disorder you can still function independently it's part of the diagnosis of the d s m four here are parsing away the credibility determination because if you can have a mild form right that allows you to practice loves you to interact allows you to make rational decisions because you're that's what the colleagues say he was dealing he was dealing with them perfectly fine never thought a thing of it and why couldn't he have made the decision to either conjure up because this was the only defense he had the gin sing defense you know he's telling people i was ill engine saying you know and i whatever which i judge watch didn't believe and or at least he didn't credit it and his other symptoms and then of course his family says in support of him oh yeah he was dramatically different but then you have disinterested other individuals they wasn't or magically different he was the same and i do have an answer to that all right i want to hear dr beaver said that he is represented by professionals doctors who have suffered from some work conditions dr buyer and that through their training that they've become they're able to do that if i became mentally disabled i could probably still read a law book and argue it's different than when you're functioning and you're in your life in your personal life is changing because he  was trained to react and to know certain things in certain conditions through his professional training that doesn't mean he can't suffer from a mental disorder in fact the d s m five says that it's harder to detect in professionals who have intellectual higher functioning i understand exactly what you're saying but i think we're passing each other in the night here because what he was doing is akin to you doing things in your law practice what you're telling us is that he can be a great doctor he can do everything but when it comes to prescribing medication he all the sudden thinks the medication is gin saying and not pills yet right and then everything else is ok but the one fact i think that would be like you is a lawyer you can come and argue to the great judges of the th circuit and do and do well you do great but the minute you walk out of the th circuit court room you all of a ocker panels testified to that the competency hearing so it's before all of the major manifestations of his conduct plus plus he was violating his professional standards after hours by the conduct that he was that he was engaged in the issue is what's causing him to engage in this conduct and not realize that he's that he's being morally wrong when he's doing it the question for me is whether i would reach a different conclusion that's not the test no i understand how did you noble review you know but the test is this the test is whether or not this court is left with a definite firm conviction the trial court made a mistake so the that's the it's a boy yes your honor may it please the court mike mitchell for the united states i'd like to start off by talking about the fact that during the time period that dr buyer was distributing th understand that yeah sometimes sex mostly money but during that time period dr byer ran a successful medical practice according to his own testimony he had between three hundred and three thousand five hundred patients according to his testimony at trial a doctor buyer was also supervising a medical clinic sorry a psychological mental health clinic with a practicing psychologist as well as a social worker during the same time period he was also appointed by idaho courts to be to evaluate individuals who were alleged to be incapacitated in probate and guardianship proceedings and those excerpts are provided at the beginning this last point about how he was evaluating other people's competency essentially are you making that point to make the implication that he knew how to fake being incompetent i was wondering what the point of that rd point was the point of the rd point in capacity that he's been insane since that time that his capacity has been diminished that he didn't know the difference between right and wrong for all of those yours while distributing all of those drugs is not consistent with the professional practice of dr buyer who had all of these responsibilities not only in his medical practice but these tangential responsibilities because he was a doctor let me ask you this question and i want to make sure that and interval aiding this in from a case  sixty depending on the amount of money that was being paid to document actually writing out this he was writing so he would write them sometimes directly but often times he was working with certain individuals these adult answers at the strip club and these dancers would come to him with lists of names of friends and family and again this is i could give you the excerpts but there in our brief but those that that record at trial showed that he was selling all of these women  no not that i'm aware of i think the jensen reference and syncing wasn't a big part of this trial actually just in one and one of the videos he made a reference to the fact that he was involved engine sing and i think the defense tried to use that a trial to say that in the video because they had to explain this video where he was talking about distributing pills they said oh he was distributing gin saying it really wasn't a big focus focus of this trial what happened at the struggle was d byer went into trial with the belief that the the jurors would not believe these women because they were adult dancers at this club and these women came and they testified and the jury did believe them and dr and dr buyer testified reasonably and rationally about why jurors shouldn't believe them why maybe some of his charts were messed up he tried to rationally explain the evidence and  rationally rebut and to call these women liars and put his reputation up against their and then only after dr buyer was convicted did these assertions of insanity and  incompetency were they raised and it almost appears sometimes like there's a this effort almost recreate the trial record that shows a person and i'm talking about dr byron his testimony you know trying to rationally address and the court may district the findings on this the door court viewed dr byers testimony as articulate that's how the court described it and that's how it appeared at trial see anywhere that maybe i missed it i certainly wasn't at the trial but i did see it anywhere did you ever guess to find that he was actually prescribing i can't recall i think there may have been a reference to gin seeing with respect to that video again doctor by had to try to sure that the quantities were indeed corroborated he arrived at one hundred and ninety two months but i'm not quite sure how he got there yes your honor there was actually testimony at the beginning of the sentencing hearing by a special agent jacobson who testified about how the the variations depending on what witnesses the court believed about quantity levels and what they meant in terms of the guidelines so certainly the court could look at that but to be sure the district court but isn't that guesswork really at that point no your honor the district court looked at the pre sentence report looked at these reports of how many drugs were being provided based upon this testimony and reached a conservative quantity in fact the original pre sentence report held that there was an office level of thirty four for base office level for the quantity of me yes the district court dropped it to thirty two and so ruling actually disregarded evidence from two different witnesses who testified about drug quantities in order to reach what the court deemed as a conservative estimate  pharmacy data shows only a tiny fraction of the estimated a mess what the huge discrepancy between the estimates and what the pharmacy data showed i don't know that there's a discrepancy  all your honor respectfully and the reason i say that is because it's part of dr byer scheme dr buyer wasn't selling funny and destiny blassie and jordan knew kirk and stacy bernstein these women he wasn't selling them prescriptions in their names he was selling them prescriptions in the names of people other people and they would bring him large number of names and then he would write them in those names because pharmacies would be rejecting a prescription from stacy bernstein if she acquired ninety pills of oxycodone one day and the next week brought in another prescription for ninety oxycodone either at that pharmacy or somewhere else and all of these women their testimony each other and what also cooperated the testimony of these women who said that they were using other names were the medical charts that we actually introduced into evidence that showed that showed the names of people found in d files that we obtained pursuant to a search warrant and we were able to bring some of those people into court we didn't bring you know the entire public into the court and all the names into the court but we brought selective witnesses who said i was never at dr byers yes your honor and their testimony and this is described as well as i could in our brief was corroborated by numerous other witnesses and in fact sometimes i would just for sake of summary because we had a limited number of pages we would say something like six witnesses corroborated blast the statement that blast the purchase prescription drugs in their names and the indictment shows of this is well so if the court looks at the indictment the substantial counts the substantial of counsel identify these women blast the bernstein newkirk and it will say that they purchased the drug but then on the side in the next category within the field of the indictment itself  the is who has the name of the person whose name was used on that prescription and then we offer those prescription so we know we know that the type of scenario that the district court how much you know that's a base amount yes but the sentencing was based on much higher figure than that the sentencing was based upon a much higher figure because again if we just pull destiny blast these records are funny brock amount his records there would be only very few prescriptions that were given to them in their name so the board of pharmacy records will not show now i understand that and then that a reasonable response the real question is how much proof should we expect in the sentencing process when you're trying to get to quantity for purposes of word fits in the in the sentencing guidelines and the words i can see here thirty two but i can't see the thirty six so far yes and your honor the district court reduced it from thirty four to thirty two just to be clear about what the records show but it shows but  the district court is obligated in terms of that standard to reach a reasonable estimation and i believe the standard as always is the same as any sentence an issue which is proponents of the evidence you know i don't and i think judges gallon you correct who's asking you what evidence was actually a deuced at trial a trial at the sentencing to establish the difference between what these two women actually got in their own name and the additional quantity that was found by the district judge to be appropriate in inclusive all in the calculation included i understand now your honor the testimony the test was a just the district court went on the estimation of these women and their testimony at trial about how many prescriptions they received from dr buyer and other people's names and largely it was based upon their addiction so for instance he testified at trial about using large numbers of oxy code on just to basically live because she was so addicted to those pills and she received all of her prescriptions from dr buyer i think there is testimony from  she met with fire two to three times a week to get prescriptions for others plasty thing started out as a couple of prescriptions that we can that went up to five a day i mean that's the testimony that you're relying on is that yes your honor and it is the standard even that every bit needs to be corroborated or is it that you just need to make a reasonable estimate anyway as a as i said earlier your honor other hiraman is that the court reach a reasonable estimation upon drug quantities and here again the district court  tried to be as conservative as possible and lowered the base often so level for the drugs by two levels what's your best case what's your best case on that point other words a reasonable estimate is enough that they were getting three to five prescriptions a week because the board of pharmacy records would show that during the period of time the government said that they were involved in this activity of dr barry getting it they were getting it in other people's names according to this and it shows that on the pharmacy compare if you show that the government exhibits was so who that who the prescription was made out to and who actually and who the prescription was given to by dr byer so it's all in the pharmacy records those counts so so it's actually all laid out in the board of pharmacy records of those who received the prescription and who gave the prescription to or who he gave the prescription to it's all recorded in the pharmacy records so there's nothing outside of the pharmacy records that corroborates any of the trial testimony in relation to the prescriptions that were actually introduced at trial and there's no use saying that the pharmacy board of pharmacy records out it lays out a need to account that the initials of the person who actually got the prescription from dr buyer and who the prescription was made to those those will correlate to the board of pharmacy records that were introduced at trial witnesses testified that they received five a day or ten a week or more and they were giving these prescriptions out is there any reason that we think we have pharmacy records to match up to all of that or can the judge just sort of count the prescriptions and figure that it must be this quantity if those prescriptions were filled they will be in the board of pharmacy records was every name of every one that they were giving their prescriptions to part of this record that they can trace back to yes yes and those are the exhibits that were admitted at trial so so the testimony that they receive in these these pills over and above and beyond what the board of pharmacy records showed just don't exist because there's no evidence that dr byer had an independent source of pain pills  there's just no record they can you point us to where it's clear that every person that would have gotten a prescription from flask it was it was in a pharmacy record that was admitted at trial not standing here right now i can't but i correlate with each count of conviction so the the person that came up to this to the stand there is a board of pharmacy record that will correlate with that for those folks who said i have never met mr dr buyer in my life but i gave this prescription to destiny by ascii the board of pharmacy record that was admitted at trial will show that transaction i don't think there's any record beyond in other words the board of pharmacy records would show every prescription that dr buyer made during this appropriate time frame in relation to the trial the trial counsel or alleged ok so the additional so there's no other source i mean you would need another source is that what you're saying well there's that's where he was given pills out like five hundred thousand pills was destiny blasket sort of general that he she received five hundred thousand pills in the period of like eight or eleven months explore at this point so let's give the government two minutes to respond to this thank you your honor the government didn't have all of the names of the individuals here but the issue is whether or not there are records of the actual prescriptions that were filled with dr byers name on it and if the rules of the pharmacy records are and this is apparently state wide that every prescription issued by a doctor is recorded then there is a problem here you know what you can't go by john doe's if if john doe got the prescription and got the drugs the druggist would have had recorded that that drug was prescribed by dr buyer and as long as dr byers name is in the record and purports to be all of the record all of the prescriptions filled then there's an issue here we could have pulled all of the pharmacy records probably for dr parker we didn't do that but all of the controlled substance prescriptions that he gave over the period of the conspiracy and tried to attribute all of those to him instead we did a we knew it at these women whose testimony was corroborated by others because all the almost all of the so let me put it this way there were certain indictment we were trying to prove specific substantial counts in the indictment and so we obtained border pharmacy records for those transactions and offered those in trial and they're in the government's exhibits over here but beyond that beef beyond some of the these substantial challenge accounts that were charged destiny blasket or funny brock a monster at trial we only prove that this happened even though they said it happened all the time we only proved eight or nine of those as examples of let me ask you this yes to get right to the heart of it i think what you are saying is that you didn't introduce into evidence all the board of pharmacy records for the relevant period of time for this doctor you only introduced the born of pharmacy records that related to the people who testified with respect to the specifics of what you were attempting to prove yes your honor because those were the relevant records to prove substantial counts and that's what you credit as the difference between what the pharmacy records would indicate and what you are suggesting judge lodge correctly now and yes your honor and oftentimes in trials  criminal trials involving non doctors you have witnesses who will testify credibly about i receive so much methamphetamine you know maybe a pound of methamphetamine every two weeks for i'm a defendant and it and as long as that is credible information provided to the district court defendants are frequently have those drug amounts included in the p s r and here it is very clear from this record that we were we introduced a limited number  pharmacy records to prove a limited number of substantial counts for a variety of reasons but one of which would include you know your how many witnesses do we want to prove that the doctor committed this crime how many witnesses how many counts against dr byer do we want to bring that at sentencing though you are entitled to rely on relevant conduct even if it was approved in a trial as long as it's relevant conduct right yes or big controversy leaves you but that's the law so you could have obtained these additional records from the board of pharmacy and introduce them but instead and i'm not saying this is wrong is something that the panel is going to have to decide but instead what you did is you relied on what you had the testimony of these witnesses to then extrapolate what you believe is reasonably  my correct here you're correct and for sure if we only relied upon border pharmacy records then we are going to miss a great deal of relevant conduct here because these women and the state that they were in and the level of addiction that they were and as well as and all of the again all of these witnesses cooperate themselves as we say in our brave everybody agrees that dr buyer was selling prescriptions to all of these women and a variety of names were  miss all of that unless they can recall every single person that they every single name that they used over all of those years to acquire prescriptions and if we ground in all fairness to the defendant if we grab all of the practicing doctor for giving prescriptions and and we would presume that some of his prescriptions for those drugs were legitimate so the pharmacy records really can't tell whether or not something's legitimate or illegitimate but we went off the crowd rated recollection of these witnesses about how many drugs that they used and that's very typical in drug cases including this one thank you your thank you both sides for the helpful arguments the case submitted and we are adjourned for the day