conviction we're here today because dr evans was denied the opportunity to impeach a key inside witness about her motive to curry favor in her testimony when this was dr evans's long time medical assistant brenda clayton the target letter in the record yes your honor it is you know you know it i do not but we cited the record page in our assigned by the same as his new u s attorney that was the one that elicited that the testimony from the target letter was signed on behalf of the grand jury by the same prosecutor that elicited we've never said you're in trouble ye last question just factually how many how long before trial before the testimony was the target letter sent with a grand jury subpoena i believe the target letter was sent in september and trial was in june or july of  powerful motive to curry favor in her testimony at trial dr evans tried to cross examine clayton about the target letter but the government objected and the district court prohibited the cross examination as we just forecasted the government did not just block dr evans's attempt to impeach planes testimony the government compound in the air by bolstering clayton's testimony the government repeatedly told her on the stand and in front of the jury that it did not think she had done anything wrong despite having sent her a target letter confrontation clause requires reversal on all nineteen counts of conviction do you think the fact there is so little circuit law about the admissibility of target letters subject letters witness letters is because it's so obviously impeachment or is it because these are very strange creatures early in investigative stage that would be very confusing for a jury to understand and therefore courtroom team really say this is too confusing black letter law violation of the confrontation clause the confrontation clause gives a criminal defendant the right to cross examine a witness about that when it's his motive for favoring the prosecution and that's a straightforward means the juror i mean the jury would the that the witness is going to say well i guess there's a body called the grand jury this reflects what maybe they think the links they think their exist and therefore i'm  very odd document for a witness to try to disavow do you see the point that i'm worried about is i would think it be highly confusing to allow heavy cross examination into a target letter i don't think  o be that confusing by sending the target letter the united states attorney's office had substantial evidence linking miss claim to the commission of a crime and that's just simply evidence that the jury needed to hear  clayton's credibility in order to evaluate her credibility is that the evidence not so much what does this letter mean as a legal matter that we learn in law school but rather have the impact it had on clayton and her willingness to testify against  boss in that really what you're cross examining about i mean if she doesn't understand the word putative defendant then it had no impact on her if she misunderstood it and thought it meant she was a defendant unless she testified it had an impact on her rightly or wrongly and that's the kinds of questions you would be asking right absolutely and to be clear the target letter itself did not say she was a putative defendant that's from the u s attorney's manual which governs how they send out these target letters the letter itself said that she was a target of a federal criminal investigation for suspected violations of federal criminal law including the distribution of controlled substances and that seems to be something that is well within clayton's ability to testify to known to man you man was your witness correct miss me and yes she ran into the same problem but from the defense side that's right she was under the threat of a target letter and at trial the government indicated that it was that it was still consider prosecuting her and she was concerned about it and the district court also said that the defense could not get into her status as a target of the government's investigation isn't the problem with man that having called her she pretty much duplicated  an said so even if we were to agree with you that that the there was a error isn't the problem with the harmless error analysis that really claimed was kamala to because of man and others he testified to the same  stuff two points on that judge i think first of all the man did not duplicate everything clayton testified to she might have duplicated certain parts of it but cliff was on the stand for over a day and mismanaged on the stand for much shorter period of time and the second point is is that because miss manners under a similar target letter and was similarly being threatened with prosecution even if she said everything the same as cla she was still susceptible to the same called her so it's a little different circumstance then your the argument is you're trying to make your case against us by putting on this witness and then shielding her from anything that would show she has a motivation to stretch her testimony in favor of the government but with man y'all put her on so that you don't have an argument i think that maybe minimizes the difficult position of defenses in where the decision is between putting on a witness and perhaps on cross examination the government's can be able to go into things that corroborate what another witness says and not be able to put on an inside witness at all if that was the case the government would have been the only party in this case that wouldn't been able to put on an inside witness was the most incriminating thing that clayton said that no other exhibit or witness corroborated so i think there's three things that she really said that supported the government's theory of the case judging and first she said that for follow up patients she would just fill in the prescription before judge evans got into the room to the context of these various office rules and policies that the government relied on in its case these are things such as the parking lot policy the dress code and she specifically said that they needed those rules and policies for pain patients because they came from out of state so this was powerful circumstantial evidence from a key inside witness that very easily could have tipped the scales in favor of the government as the jury was determining whether the government had proved its case that did any others testify to that effect and she's not the only witness on that that's the problem i guess to add to judging  question what was the worst thing she said that only she said well i think with regard to her filling up prescriptions before judge evans came into the room she's the only witness that i can testify to and given that we  not go into her credibility the jury cannot determine whether she was telling the truth with regard to that particular thing with no one else testified that that the prescriptions were filled out before the doctor saw that  brenda claim prefilled the prescriptions not that she did but that anybody did another word that the doctor wasn't really overseeing the prescriptions that's the import of that testimony that he's just signing whatever is put in front of him but no one else testified to that that's your they wanted the same prescription i filled and dr evans came in and signed it and that was really important testimony no one else testified to the necessity of these various rules and policies and she came out and straight said she said these patients from out of state that's why we need policies ok i wanted to ask you because i know you said you want to focus on this and i know why does it get your whole new trial but i want to focus in on some stuff that then gets a whole new trial but it's still important and that's this whole mail fraud thing i'm having a little bit i understand the argument that you didn't really defraud i mean if you're a drug dealer and if dr evans is a drug dealer and he selling drugs and he sells the drugs he didn't really defraud anybody  is that a challenge really to the indictment or is that really more of a challenge to the evidence that supported the indictment detains i think that it's both and that's how we explain it in our brief is that does not allege any misrepresentation and certainly not material misrepresentation that is why dr evans joined a motion to dismiss pretrial on these exact grounds that the superseding indictment was substantially similar and certainly did not add any language of a misrepresentation or any deception on the part of dr evans and then as we explained in our brief not only did the indictment not allege it at trial the government just completely failed to present any evidence of a misrepresentation and in fact the government repeatedly said that these were customers they got what they wanted to help me out of the misrepresentation in essence that i your doctor and giving you medicine that will help you and that is for your your health and your wellbeing rather than on feeding your drug habit that's completely the government never brought out any misrepresentation about that and never question any witness on whether they felt defrauded whether they feel there is a material misrepresentation but i think the most important thing such as goes against their entire theory of the case if a patient was there for a legitimate purpose and wanted pain medicine and is relying on the fact that dr evans was a bisons doctor who was able to prescribe pain medication then that patient was it's hard to say how that particular prescription was outside the course of medical practice but if that patient was only there to get drugs they don't care whether dr evans is a medical doctor or whether he's wearing a white coat they just want their drugs so there's or seeing either patient got what they wanted either patient got what they wanted and there is no material about the patient who does have pain but he does not recognize or doesn't try to recognize their addiction and fuels an addiction for them rather than simply helping them with their pain i mean the idea that they he didn't do enough to resolve the pain issues outside of just fueling more and more pills i guess that they're still there's no misrepresentation that dr evans made so that's a core of your argument absent there being a misrepresentation we can point to the indictments defective at the argument it's an indictment deficiency or it's a sufficient of the evidence argument i think it's both there's no misrepresentation in the indictment and that at trial the government completely failed to but you we were able to argue these are real patients with real pain and the jury just believed that the jury disbelieve that well i don't know that the jury just believed that they were real patien with real pain but considering the multitude of errors the jury did your best authority for this specific attack on mail fraud is that the store decision from the second circuit i think it shows that where there's a arm's l transaction and no deception well actually in star there was a deception that where there is no misrepresentation they gets to the basis of the bargain but are you therefore relying on store or not yes is that's a plurality in judge newman described that well as really the post office that was being defrauded that isn't your argument here no and i think that this case would be different if you know they alleged medicare fraud against the pharmacist david de vito and that is a different issue that was never brought up with i always thought star was sort of a second circuit only theory con in the you know the that the defendant had to contemplate harm to the victim but that no other circuited adopted that well i think star does say that but i think deception in starr even though it didn't affect the basis of the bargain but here there simply wasn't any effect on the basis of the bargain and there was no deception thank you all right thank you deserve time for but i'm actually your colleagues are time for a battle and want to hear from ms wilson for the united states evans confrontation rights violated that the district court properly exercised its discretion the jury could tell that clayton wasn't trying to curry favor with the government she problem with white why discretion is i want to question you about x y z and i'm i'm asking the same question over and over again all day long the judge finally says are i pass an app move on to a b c instead x y z whereas here the judge said you can't ask about x y z at all that's a little different from the wide discretion to kind of keep things moving in a courtroom boyd repetition and wasting everyone's time right i appreciate that but the courts say that the district court has wide latitude in these situations i'm up we had was a very fragile witness we day but she still testified that she wasn't a police officer she also disavowed seeing anything appropriate inappropriate that was going on of the dental employees so that was overt about people washing in the restroom loitering and so much so that the office had to implement policies telling people don't arrive before eight fifteen don't hang around and things of that nature fragile witness though could easily be she's really nervous she'll be indicted unless she says the receipt with the right thing you know if the all this i was reading the record she was very nervous but why isn't that consistent with someone who's been told they're a target and wants to get it just right for the government two points first you had asked her on are about the target letter and that was on september fourth two thousand and fifteen had some serious problems trying to get the records filed in terms of the exhibits because of a macro is totally over my head but anyway that's the record you know the stamp that i have on there also what's important to that what is clear in the record is the district judge i couldn't really understand what the reason was the district does says no that's investigatory and maybe then that's a four o three type problem but then the government starts to bolster due respect i just agree i think that well didn't the government says i've never told you that we found anything you've done wrong i do agree with that but i don't think it's a traditional form of bolstering i think if you read whatever it is to say me to say that wrote a letter saying you're a punitive defendant then ask the question i've never told you you've done anything wrong at that point that letter becomes go so gave no reasons refused to have proffer and tells the jury to disregard the questions that's a pretty strong i don't know what you mean by refused to allow them to admit that the defendant at the first moment said could i at least explain where we want to go in the court said no well that you can't leave a records gusher and then the judge went back later and said let's go back to your your complaint right and when he went back i read it didn't seem like he allowed he gave any further reasons he just said that's investigative but i think what's different here is the court saw that the witness was from the u s they wanted to declare her hostile and the court said no you can't do that she's not being cooperative and she pushes back with you which contradicts or is certainly not indicative of somebody who is trying to curry favor with the government all the more reason this would've taken all afternoon all the more reason to let the defendant have his right to cross examine this witness and she's fragile and starts crying well we'll get some tissues and we'll move on and i don't understand this we all have to be so worried about how fragile she is she's a witness in the court and certainly you don't want anybody abusing her but if she gets cross examine and starts crying we take a break she can view some tissues in come back i mean i don't mean to be unfeeling but that's how that works witnesses need to testify and witnesses testify about uncomfortable and happy sad difficult topics all the time and you take a moment as the judge you let him collect themselves and you move on and i have some experience with that concept and that happened here ok well great but that doesn't that doesn't provide a basis to refuse the defense's right to cross examine i mean this is like a bizarre argument to me i have a fragile witness a let's not touch or but even if but even if this court determines there is an error  that we have to look to see whether it's harmless ok let's get to that in the law is very clear on that the government agrees that clayton was a key witness but she was an explosive witness by no means did the case rise and fall and there was plenty of other evidence supporting the jury's convictions other witnesses two quick questions on that one did she testify to the precise and nobody else testified to that that sort of one and second of all what was the extent of the cross was it clear through cross that she was complicit to complicit implicit in the same fraud scheme did were they able to extract that from their cross examination oh absolutely ok so there's two points but first no she was not the only person to testify aside from the expert witnesses but man testified that there would be that they would judge  a stack of priests on prescriptions i believe that there were twenty nine of them at the time so so it's no clayton was not the only person but also you had some corroboration in terms of this whole pill mill operation through the as i said before the dental employees and others and also i mean i don't know we haven't really talked about this but i find it disturbing that the notion that people are unkempt and not looking beautiful means they shouldn't be able to go see a doctor without the somebody else in the office calling the police on him i mean i don't think that was a little bit disturbing to me because i think homeless people poor people on camp people should also be able to go see a doctor well i have to maybe need the doctor most there was more and here's where there's more information they had people walking around who seemed out of it i think it was smith or epley i can't remember which one but one of the dental employees more than once saw somebody holding a prescription saying i've got it you also had these people coming in in droves from louisiana this was not this was an unusual situation and if the people needed a doctor they could have stopped port arthur or even in baytown but instead they drove into the heart of houston so there were a lot of suspicious things i don't think this was necessarily somebody who thought people looked and kept and therefore lot of testimony about that a lot of discussion around that that wow these people just there they look shaggy and they're dirty and they're smelly and i'm thinking yes and they deserve a doctor too i mean i don't know that you should have to smell a certain way to get medical care i think standing alone you're absolutely correct but there was a lot more here and the jury heard all of that more importantly we also how do we can't lose sight of this we have documentary evidence that came in and the documentary evidence was such that we saw all these prescriptions we saw the money orders the evidence was undisputed that whether you whether after the first time somebody saw of the doctor once or twice or immediately went on to this plan where essentially you said you send in your money order and you got a prescription so we have all of that type of evidence the period money order i'm sorry it was here you have the money order was there sort of a substitute for what you would have paid if you had come in and had a permit it was for an alleged office visit and it been dr de vito head even testified that when all this started he had asked and i think it was road a man about it might have even been dr evans that well wait a second are you going to interview these people like a phone interview with a stench to make sure that they need this information and he was assured that that would happen when in fact  not and so there was some contradictory evidence there the jury also had the benefit of seeing a video where somebody had lupus and the doctor didn't even examine her or what have you so the jury saw a lot the you know hard core information as opposed to a hugh said she said situation and that's very important in a case like this as you are fully can appreciate it and the other thing is the case was very strong the government's case w strong and that's part of the van arsdale factor the jury were targeted at one fifteen on july twenty fifth and the next day there was a verdict by two zero zero eight so that's very very quick given all the accounts that they had to go through also but what's important to just as this court pointed out is the other side called me and she made a lot of these same points in relation to  fraud accounts the government strongly maintains that this should be evaluated under clinton in her situation where you get all pharmacists could you say you were going to get to the extent of the cross that did occur on clayton well the cross was fairly extensive in terms of they asked her about a lot of the practices and things of that nature of course there was nothing about the target but they had ample opportunity to cross her on a m things and my answer your question that they had a myriad of cross examination points that they made i would not think about participation in the fraud well they go think they had heard all this information about how the office ran and they had the opportunity to ask follow up questions part of the part of her testimony essentially was that man saw the patients and initially claimed he did the follow  visits and clayton is the one who handled the mail for lack of a better word meaning that the money orders came in and she matched them up so you excuse me she would get the money order get him get the prescription and present it or leave it what have you for the doctor and so they had all of that information available to that they also had testimony from a couple of the patients one of whom said that if she had taken all of the drugs that she got she be dead or in a coma because the people some of these people were selling them and it was a very profitable venture for them because sometimes they get three hundred sixty pills that's a lot of opioids so they had they had the excuse me to be those dismissal under the original indictment but his motion said that he he agreed with the legal infirmities or something of that nature it clearly didn't stand on its own and the judge there if he had granted the most of the coconspirator and then he didn't file his own motion then i would see what you're saying but it's clear the judge thought the indictment was adequate right well yes yes i mean that's but yes and then there was the subsequent superseding in trying to then that's the question if we were to give him a file from him a little bit the fact that he challenged the indictment and was rejected then does the failure to do that on the superseding indictment th didn't change anything relevant to this point does that mean that we now value it is plainer of them preserved or certainly i would agree with that that you have to whenever something changes right as an advocate you always have to protect your record another way they could have protected their record was objecting to the jury instructions which they didn't do and certainly in a rule twenty nine i think there was something about the rule twenty nine in relation to a motion to it air i mean even if we have to go through all four prongs of plane or are we just do the regular review you still have to say is it here so to me the question is should the indictment have to name a misrepresentation well there are three requirements right for an indictment he was basically here have to give notice to protect against double jeopardy you have to give notice to defend yourself and you have to give no you have to track the elements of  conspiracy count but what was the misrepresentation well the misrepresentation right is that the doctor was acting will be charged as outside right the statute is outside the scope of the course i'm sorry outside the scope of being a professional and not from legitimate reasons so that doctor is telling the client i'm doing this for legitimate reasons when in fact he is not exactly what we have the problem with this doctor and he was in fact a medical doctor read all of that so he's not lying about that the problem here is the allegation that these patients were coming to him as essentially a drug dealer so if they thought he was a drug dealer and he's providing the drugs  misrepresenting me what evidence do we have coming at it another way that somebody who came to him who got the three hundred sixty pills that she was selling thought that oh oh dr i was looking out for me this is good for me i need to take you know ten opi date for my health what evidence do we have that the patient was in fact misrepresented to and why they were getting all these pills have a few first of all the doctor was pretending to run a legitimate operation in the sense that you went to see in l v and nurse he had a massage therapist now granted we contend that none of these people is qualified or qualified but he had the trappings of a legitimate medical office he had an office in tanglewood which i realize you're not from houston but it was one of the best neighborhoods in houston right so we had this fancy in this fancy area of town they don't like smelly people where they at least stand out as part of the group right and but in any event so you had you had these trappings or these suggestions of a legit legitimate medical office they kept the files admittedly they kept the schedule to files differently from the worker's comp people or what have you but they were they were essentially operating as a medical office so you had that then you have they take the people's money so the money is supposed to be to render services right to render legitimate services and instead of treating these people this man this man was capable of working with addicted people and helping them with that it's a money now i'm going to pronounce this suboxone but that didn't happen instead he cemented their addiction he also defrauded the pharmacists now i know de vito things prescriptions to louisiana and many of these prescriptions had a diagnosis which i don't i just want to be clear because i realize these are two separate things an indictment has to alleged sufficient facts to put on notice and you're saying the misrepresentation is that he's running a legitimate pain relief when he's really running a drug deal and then the the evidence sufficiency of the evidence is this what you just said that the trappings were there but the in fact he wasn't doing what he was supposed to do and the pharmacist was misled and patients were also misled is that your position well i think i mean i think you can say that because some of these patients if not all of them at least at one point for legitimate pain right they had to jury instructions twitched nobody objected and so you have the agency type issues ever really quick question that we haven't covered at all which is the money laundering what amount of money would you have to show was spent out of this account to dig into the dirty money well i think it's very important to analyze or to look at these charts and these char if you want if you look at approximately page fourteen thousand six hundred twenty eight in the record till about fourteen six thirty two what you see if in these charts is that there's this mushrooming  schedule to patients and what that what mr big a did is he went through the and he shows how the numbers increase greatly as the amount of schedule two patients mushrooms are you know essentially you have that extra net exponential growth and in the energy account which is exhibit one sixty three a that doesn't start until two thousand and eleven and by two thousand and eleven the schedule to business was going full tilt with the schedule to business might have been legitimate there was not proof that it was all iraq feeling if you will i understand it and however what we do have is substantial amounts of money and during this the key period which is essentially january eleventh i'm sorry january two thousand and eleven through september two thousand and twelve this dr evans made over two point four million dollars and the money laundering counts were substantially smaller than it was a cent i think it was roughly two hundred thousand dollars but if you extrapolate art returning to issue number one the cross examination of clayton your honor let me tell you up at page two thousand one hundred twenty clayton in clayton of loans says that she filled out prescriptions before evans saw patients miss man did not testify to this nobody else testified to this and that is because clayton and clayton alone saw the follow up patients demanded not so to harmlessness right harmless error the government says it's it's a close case not a close case we give you examples that page thirty of our opening brief of of appellate cases that are not close the doctor who never sees the patient who is working out of the back of his car who just operates over the internet makes  fake patients and you know from the evidence in this case that where the government says there was a lot of pills every one of those pills is a legal pill schedule two was about half of his medical practice and even the physician desk reference with that every doctor has on his desk authorizes this pill in these quantities for chronic pain and of course there's evidence on the other side but he is a doctor he does have an office he has professionals providing real care and have an office in a different part of town i guess well i don't know but  point is simply this that a drug dealer doesn't take the precautions that he took to insist on prior proof of injuries with an m r i how's it saying you're saying it was a close case and therefore the harmless error analysis goes your way yes ok that's what do you have to say because we didn't i didn't discuss with mr hess the issue of the money laundering i understand giles argument is you didn't show that all of these schedule two patients were in fact pill mill recipients some of them were illegitimate and given that how we parse through this is a problem so i'm looking for a number that they would have to exceed to definitely get into dirty money what is that number in your view all i can tell you your honor is i don't have a number because it's the government's burden at trial to trace the funds that are in the account at the time that the check is written that is a money laundering count and we think it's sufficient doubt that the evidence shows that that account contained investment money treatment of workers comp patien legitimately treated even if we assume the government's correct that some people he was just furthering their addiction or where there were some people that he actually treated appropriately and so you also position as i understand it is we just can't tell which is which  thomas schedule two money was in that account at the time a check was written and how much other money let's say good money was in the account that a check written so so even if we assume all schedule two was dirty they still haven't done it  correct because they've never looked at tracing what went into that account before the check was written and you would say that is require simply of a caterer of the conviction all together on those counts and not a new trial will fifth circuit the closest case would be green versus wainwright six thirty four f second to seventy two and i say that because of my time is up if i can finish that thought that there are cases such as green where there is no charge pending against the witness witnesses not truckers clayton was not charged but the possibility of being charged is what gives the motive to curry favor and the case i found since the brief went in is u s b anderson as well eighty one second eleven twenty eight from the anything wrong does that also factor into the harmlessness evaluation yes but i think this would be reversible error without that bolstering right but that made it worse all right thank you very much appreciate the arguments from both sides and the cases anderson