controlled substances act and the argument has basically split into the substantive sections under the c s a and the sentencing factors i'd like to address the substantive arguments first if i may the main argument is that dr feingold was developed bribed with a fair trial and due process of law when the trial prosecutor repeatedly elicited medical standard of care testimony to equate to prove his intent by a lake the c s a along with that the judge improperly equated the criminal standard in the course of professional practice with the negligent standard good fa compliance with the generally accepted medical consensus in the country despite a lack of articulated medical consensus in this country at this point of total it's certainly clear that there has criminal prosecution or per prosecution for criminal conviction in this case is is a very high one now the in the past the courts have allowed prosecution of physicians under the statute but only the most see evidence quite clear that he was prescribing in to mount clearly in excess of what the individual could use during any given period and he's prescribed for people we didn't know who were before him a booming business just with a great deal of evidence stand whenever he did was far beyond whatever standard you want to say well the issue was the judge's instruction that he did not follow the good faith practice generally in good faith a practice generally accepted in the country as to the evidence that was  it was in contra it was controverted actually there is was evidence from pain management specialists and there is evidence in the record in the supplemental record that for instance there is no upper limit on record specifically said there is no set standard of office visits a procedure for or any anything specifically delineated to articulate what is in the course of professional articulated that there is no generally accepted american or standard in the country or for a violation under under the controlled substances act the court ha particular problems with the term legitimacy medical purpose and in the course of professional practice the legitimate medical purpose language actually derives from the rule which could be if prosecuted under the extreme case but not for violation of traditional medical malpractise court hearing that occur to or ia standard of care evidence as delineated in the brief should be wiped out the government should have been required to make its case on the credibility of the allegation only of drugs for profit in this case the let's assume the evidence suggests that the physician intentionally committed malpractise let's assume that that's what the evidence showed without meet your penalties this man is serving a hundred forty four months in a federal prison after having been caught up in a flurry of the legislative changes and ambiguity is and an arrow where the left to state regulation but i'm told there may be some difficulties in determining what the standards should be and what the ministry is should be but the evidence here against your client is so overwhelming if you would to go case by case by cases we have looked at in the records including the subscriptions for undercover go to a different pharmacy because physicians pharmacist did not want to fill natural path ics prescriptions because they didn't believe they were legitimate doctors both dr feingold and the patient testified to that loath to use the word standard but a different way of prescribe ing in that style of practice as to the of amount of controlled substances i would point out to the court that in almost every case the amount per pill was very very small and i would again the literature of medical literature suppose submitted in support suggest that and testimony also there was evidence to substances were always prescribed for pain in almost every instance the the patient came in and very often that your doctor finegold but but said that the first substances in question had previous previously been prescribed by other doctors dr feingold knew that one could continue taking these substances and achieve a tolerance which is very distinct from an addiction and tolerance is a very normal consequence of use of repeated use of narcotic drugs to treat pain because one is becomes tolerant does not on the contrary indicate the use of pain medication to pretty gonzalez in december in that case the defendant or the appellant did not challenge the sufficient sufficiency of the evidence or the jury instruction both of which are challenged in this case where submitting that the instruction itself including the language generally accepted medical standard in the country is now rendered everything constitutionally infirm it is now constitutionally infirm has the effect of a larry noted that there was a careful jury instruction given to the jury regarding the civil versus criminal standards of care that was not done in this case in fact it's the opposite and finally in that case the the  in terms of the prejudiced the prime prejudice was there was less prejudiced actually because the prime witness was a turncoat informant who had masterminded the whole plot and then health fraud and money laundering charges involved in that case as well which are not the case here so the the analysis is very different here on ars and i would suggest that it's a distinction that worthy of mention that any enhanced ment's which would increase dr feingold sentence should be argued unproven to the jury under the apprentice likely standing standards here the jury made no specific findings as to the quantities involved trial counsel argued that the should have resulted in a base offense level of twelve instead instead of thirty which would have been a ten to sixteen month range under the guidelines as opposed to the hundred twenty one to one hundred fifty month range prescribed by what turned out to be a level t i'm not asking you to concede anything on the conviction or even the limited remand of course but again as to the the blakely booker likely issue rather i think booker is self evident here the it appears that in convicting dr fine old of the one hundred eighty five counts the jury necessarily found that dr feingold distributed both the type and the amount of the controlled substance or at least that was the judge's argument in justifying that notwithstanding the evidence against him was circumstantial and even the expert witness dr ferrante could not tell whether certain of the prescriptions were legitimate or illegitimate based on his chart  sentencing and founders made to the points in the report so all of this is been gone over hasn't it for their act in the record and only just one final point on this that the jury likely issued the blanket verdict based blakely's jury fact finding requirement i didn't bring with me today the actual instructions given in this case and i wondered if there was an instruction conference before the instructions were given and if your point about the defect in the instruction on man's race was brought out and hammered out the conference yes your honor and as i've mentioned in the brief then the tri trial counsel did request that request an instruction on again on the criminal versus civil criminal standard civil standard of proof the judge agreed to give it but ultimately did not it did not come out in the instructions o but since the jury instructions are so crucial the importance of that is it's self evident but just if i can find my my place for a moment and getting back to you may want to save some time for you your honor i'll save the remainder of my time for rebuttal on that we take from the supreme court's opinion recently decided by my posting counsel of gonzales versus oregon although there is a subjective opinion to the practice and the government submitted evidence of what those standards were through to medical experts this was ok well i'm just i understand that there were there was what looks like a malpractise standard but applied so how do you know what the i'm having a little trouble getting my hands around how malpractise becomes criminal  opposing counsel has attempted to confuse the civil malpractise standards with the criminal standards of proof that is not what happened in this case this court in bed not sure if that's how you pronounce it correctly explained that evidence that a doctor repeatedly failed to follow the generally recognized medical procedures tends to show that he was not  prescribing controlled substances for a legitimate medical purpose the fourth circuit in a larry also held that and so what the government did and the government did it very specifically is they submitted testimony from a natural path who had attended the very same medical college as defendant feingold and also from a pain management specialist and these two doctors and savage that there were in fact the guidelines for the distribution of controlled substances for pain management and that evaluation sysco examinations medical history diagnosis treatment plans and periodic didn't stop them from prescribing those jobs when he was exiled by pharmacists more than once for more than one pharmacy we've got an issue a question about the amount and the frequency of the drugs that you're prescribing he ignored those and went right on prescribing as he had in the past and also your honor the court specifically noted and in its sentencing will now let's put not get to the sounds let's go to the jury what you told me sort of what the evidence is what's the jury you told me what the standard testified to but then how was the jury supposed to determine the break point as this court and it used wanted the exact good faith jury instructions from hayes which this court approved and specifically said i of guilty based on mere negligence which is the civil standard that is discourse on holding in case your honor so i would submit therefore that the district court followed the law follow the standards and correctly instructed the jury and also your honor the record is clear that the defendant's own expert and the defendant himself and i'll point you to e r pages one zero nine two one ten and the government's brief at page fifteen where these are found the government admits it was a defendant's own expert dr cronin and the defendant himself agreed and admitted that the defendant practice his method of prescribing controlled substances was outside the usual course of accepted practice by his own admission your honor and let us not forget and the district court found this crucial dr ferrante who was a pain management specialist testified that the amounts of controlled substances prescribed were so great that if the patient type a command in this short period of time in which they were prescribed that those patients would have died from liver failure we cannot ignore those facts and those facts were not contradicted on the record the court has no further questions and that i'd like to move on to the sentencing the defendant first contest if you want sentenced in the blakeley error era usually are must fail because the defendant was not sentenced based on facts not found by the jury verdict or specifically admitted by the defendant district court whent to the extraordinary measure in that book or was huge subject of const controversy at the time it had just been argued by the supreme court but the opinion had not come down to the district court not only made a record at the sentencing hearing but subsequently submitted a details written sentencing report so that this court could have the benefit was as of as much detail as possible of its thinking and in that sentence in port the district court went to the extra effort of specifically pointing out exactly where the defendant had made the admission the evidence submitted by the government included says that patient records from each patient which apply to each of the counts on the and dykeman artist other than the ones that were dismissed on each of those records contain details drug law how much and when defendant feingold did not contest or challenge any of those amounts or any of those substances at all so in finding that the defendant was guilty of each of those counts and by the jury and with the defendant's own admissions the district court did not have to make any factual findings itself they  however because the government does concede that it was an error it appears that the weight of legal authority finds that a mandatory minimum sentence is not required to apply the safety zap and of course the court is aware that that was a misnomer it wasn't exactly the safety valve it was rather a section under the guidelines which is now to the one point one three seven that was b six at the time but it required application of the criteria for the safety valve for vision now although the government concedes that this was error the government does not three forty four and three fourteenth and i could see this is a court i find that even though your advocacy has suggested that i should have taken it into account i choose not to do so because i don't think he and then has suggested that i should have taken to a kind of i choose not to do so because i don't think he and the last factor of that being candid with the court i've given him acceptance of responsibility which is not the safety respectfully disagree but there's basis for that is that there was no mandatory minimum yet right so much so are that are you interpret lading what he talks about on the acceptance of responsibility into what he's talking about when he says i respectfully disagree he is he is including that your honor because when the defense counsel says under the s of he has met the question here is your honor the court says i respectfully disagree and if you go down to the defense counsel then talks again and says he should be entitled to the two level we duction the court says and if i am incorrect that it could apply i do not believe it is applicable in this case for the reasons that i stated and so that's why you have to go back to page three fifty one e r where the court was saying before you to the last factor of that but then this unfortunately defense counsel cut him off and so the court never got to say exactly why he feingold was not eligible for those reasons your honor we would submit that there is a record there from which the court this court could find that the defendant has not a stablish the prejudice and in fact it is the defendant's burden to prove by a preponderance of the evidence that he is entitled to that departure do you agree that there should be a emmeline wanted to remind her you want to be obviously that to the the law says that the defendant is entitled to such a record but the government's position is that you need not remain and because the record is sufficient and clear in this sentencing in a supplemental memorandum that the court district court prepared in which he gave the reasons why he denied every request for downward departure for the defendant feingold and he also noted that he was particularly struck and would never forget i'm paraphrasing a district court that this defendant  said he believed he had found a good way to make money and would have a profitable practice in the area of pain management the government in its your honor that is exactly the proof of his intent the court had no from the question some sort of modest living from his practice is not sufficient to have deemed him and drug dealer on a large scale for purposes of conviction under the statute as to the safety valve or to the one point one  request to instruct the jury that in making a medical judgment concerning the right treatment for an edge of visual patient situations have the right to choose among the wide variety of options furthermore during the final charge although  requested and the judge previously agreed to instruct the jury that failure to follow a standard of care of a reasonably competent position does not rise to the level of criminal liability no instruction was admitted the jury was not sufficiently alerted to the fact that it must find or make a subjective inquiry or an inquiry into the subject of state of dr feingold mind to find a required mens rea for a conviction under the statute and finally two other points regarding the standard that were purportedly offered a standard pain management or medical practice the natural path exposition proffered by the government did not attend the  college of natural path of medicine in oregon at the same time as dr feingold he attended many many years later and as to dr feingold prescribing pain medication for people who were otherwise drug