for the last fifteen or so years prior to trial pulmonologist had prescribed to this davis four months worth of pseudoephedrine she suffered from c o p d chronic obstructive pulmonary disease he classified it as severe it's undisputed several of the government witnesses testified that they witnessed miss davis have severe breathing episodes long time neighbor long time friend they also testified to help her get through those long  gave its ruling and it was a definitive ruling and i've set forth in page twelve of the quote the prescription that he meaning dr painter wrote recently is not admissible because it has no relevance if he starts getting into expert testimony as opposed to just stating his treatment a mistake this his diagnosis and the like then it is objectionable and the court will not allow it in the prescription the prescription and which was why why would he pursue outside the conspiracy time period no so correct and taking a diversion here but so why is that relevant the prescription you ha defense which is she didn't buy the pseudo to manufacture meth oh by the way there was absolutely no evidence from any witness that she had ever manufactured sold  methamphetamine the testimony and the prescription from the pulmonologist that he prescribed four months worth of pseudoephedrine to her in october of two thousand and fifteen went directly to our defense the judge judge read a term and that because it occurred outside of the conspiracy scope it wasn't admissible and we respectfully disagree without finding however the government when it was cross examining dr painter so i asked well you never prescribe pseudoephedrine why is the on the stand he's on the stand to confirm one not been disclosed earlier well we had disclosed every page of medical records that we had obtained from dr peters office no i mean the and that it had been disclosed as an expert in what his opinion technically no he was not disclosed as an expert even though what i recall the district guard said well you had disclosed but then during his cross examination let's assume that the district court was correct in saying that that was not disclosed and so you can't talk about that the government is cross examination then asked the very question that it sought to exclude but they limited it to the course of the conspiracy they asked dr painter well you never prescribe pseudoephedrine between the years of two thousand and ten and two thousand and fifteen did you know testified that she used it and was self medicating with it was there any evidence that there was significant evidence from neighbors longtime friend that she suffered the witness described it as her breathing episodes from c o p d would be like as a someone had just ran a long race and when she had these episodes they witnessed that she had consumed she had taken pills pseudoephedrine pills to assist her to be able to breathe normally again but had in all of the medical records you say that were were produced had dr painter ever suggested or discussed the use of pseudoephedrine prior to prior to his having prescribed it here you know so how does that how does that prevent you from from presenting a complete defense i mean if it was if it was so important and he had treated her for a number of years for the c o p d with the nebulizer and post conviction he decides i'm going to i'm going to give her a prescription how is that how is that that kept her from a complete defense pseudoephedrine is a medication that one can buy over the counter and that's what happened that with that's what mrs davis did for five years but there's no mention in the medical records that she had told dr painter that she'd used it in the past or that he'd suggested it that's correct ok when release would it have been risky for her to go to the store and buy pseudoephedrine yes she probably would have her pretrial release probably would have been revoked so she  the the facts are very very clear the court had this prescription prior to trial we discussed it at the pretrial conference the government filed significant pleadings attempting to keep it out it was discussed judge reed had entered an order prohibiting the parties discussing anything until during jury selection and mark and i think was discussed three trial anyway when it was pretty clued in right correct well i wouldn't worry about that ok rebuttal that was our only witness was dr painter he directly corroborated he would have directly corroborated her defense which is that she didn't buy the pills to manufacture math she bought the as was testified to by he wouldn't say that he just he would just say he prescribed later that would have been what we would have been able to argue look at what dr painter did he gave a prescription for pseudoephedrine we couldn't argue that because there was no evidence of that in from the jury would the doctor have testified that he would him advice to her as her medical practitioner to buy pseudoephedrine over the counter and use it because it would be a heck of a lot cheaper than buying probably prescription wise was he prepared to testify that he would have told her that or did tell her that or called dr painter as or only witness the prosecution had miss katherine book who up until that minute i hadn't been aware of i'm handed a stack of fifty one pages worth of medical records and so immediately after that i asked to recall dr painter because we have all this evidence now that no medical professional ever prescribed or recommended that mr davis take pseudoephedrine in the defense's position that opened the door to allow this evidence that we have to come in we have asked to recall d painter that was denied as untimely we made that request after the testimony of katherine book the p a and after the  close of the evidence immediately after the close of evidence we had asked to reopen and recall dr painter and we also asked for a mistrial based upon the government opening the door and then us not being able to present that prescription what isn't there are there some out of the presence of the jury testimony with d you made that dr painter would challenge that statement that that through the fender and would been a contra indicated there was never an offer proof of dr painter period we had our definitive ruling from the court as to what would be allowed and what would not be allowed well but you have an absolute right to do an offer of proof i mean if you'd asked for it they had an obligation to make an offer proof well the when i have a definitive ruling from the court saying that this is not coming in and i have the prescription as an offer of proof exhibit i think that rule one of the three states it's only when it's not apparent from the context of the exhibit that an offer proof should be made when you say the door was when you say the door was opened on the cross examination of dr painter did you did you try to ask your questions on redirect i objected and thank you for raising that the government say it's well mr she said an object to it so it's ok that's not true the transcript reflects that i objected to those questions i had my objection was outside the scope of direct that's what my objection was to but once that happened did you try to ask paraphrasing as your questions on redirect i did not did you approach the court and say they've opened the door i did not i had tempted to recall him  well but in redirect you might as well you know this hindsight but take that prescription exhibit f up there cross examined her on that and said well wait a minute here's a medical the morning may please the court counsel a few before i begin a few points of the record i would like to correct the defendant was indicted on july twenty ninth and the prescription was received on october twenty eighth some months later so this was not a case of someone who immediately went in to get a prescription to avoid problems with pretrial release second to be clear that the district judge after the conclusion of the government's rebuttal testimony did offer the defendant the opportunity to present rebuttal evidence that opportunity was declined it was only after the evidence closed we were getting right ready for jury instructions the witnesses were gone that  defendant moved for a mistrial and sought to recall dr painter well let's cut to the chase and that is you're putting the be on and i don't care and mr sheed says well wait a minute that's not fair because it wasn't brought up and he was barred from getting into that so why is it fair and how did the those circumstances arise sure and if i may i have the transcript right here and i have the offending allegedly offending statements from both dr painter and doctor book what dr painter testified was he said pseudoephedrine certainly wasn't in any of my answer before that but question before that was now this case concerns the time period august of two thousand and ten to june twentieth of this year and she's treated her during this time yet well that's the charge conspiracy and she treated her during that timeframe did you tell lisa davis to use up to three boxes of pseudoephedrine a month on a continuous basis she answers never i asked why not she said c o p t you don't want to drop the lungs so it at the end of the day the short answer to why is this fair your honor i respectfully disagree with mr sheets first of all that this was a firm definitive ruling as this court's cases require prior to trial we've talked about that at length in our brief but more importantly what did the government seek to not go into basically we had made very clear at both of the final and in a filing an amended trial brief what happened here was right on the eve of trial pretty much we find out about this prescription it was not written till the end of october we got it on november fifth and we were exchanging witnesses with us on november tenth had the final pretrial on november twelfth we took respectfully we think a conservative liberal view on this and said you know look you can you're treating physician can testify as a treating physician he can talk about what he observed what he recommended or didn't recommend to the defendant why he did or didn't and but that it just needed to be limited to the timeframe at issue in that case and that's why that that question i read to your honor prior to the why not are questioning when one goes through this  we very much tried to limit it to that now the judge didn't issue a final ruling on on this but both parties i think it was it was the judge did we knew where it was going when it seemed like the judge was not going to be inclined to lead in the prescription i know that the the one statement that mr she sees on seizes on from the colloquy at the jury selection the judge said the question we do stand on it your honor we don't think under the rules of evidence that it was properly preserved the it came up prior to trial the in on some evidence and you didn't and i'm sure judge being tried cases like if you didn't renew in a drought or you lost it that's not the rule of a bore and so any there comes a point that might be called a motion in limine a it's in the record i mean that's the new rules well that's what that's that's why i had to give this sounds a lot like a motion in limine a here the jew guys were arguing about and the other the new rules and some evidence i mean it's in evidence for review it's true your honor the reason there's not a judge read often does written orders on motions in limine a will have motions in limine the reason that didn't happen here was of the because of the late disclosure i mean this was brought to the attention by the government in its amended trial brief after receiving the prescription among a bunch of other records from the defendant and we  we were the ones who attached that to our amended trial brief and so that the defendant citation of this in the record is to our amended trial brief which is a bit odd i would just not to do believe belabor the issue but  at the final pretrial conference the judge said i'm not prejudging this immediately after the admittedly pretty clear statement from the judge that the prescription that he wrote recently is not admissible because it has no relevan she then talking about the expert testimony says i can't rule in advance on those questions and this issue of the expert testimony what would dr painter have testified on that we certainly don't have any offer of proof and we do not have a definitive ruling frankly we don't know what he would say what we do know from the cross examination from both of them is that it seemed to have been contra indicated going back to the post indictment prescription what we call it this prescription is not relevant under four a one and its probative value is substantially outweighed by confusion of the issues misleading the jury and so forth under four o three it is as the case law recognizes highly suspect simply by virtue of its timing recall the timeline your honour's this was written four months after the end of the charge conspiracy three months after indictment and less than a month before a trial this court has been rightly skeptical of similar evidence the government could not find a case involving a prescription for sue a federal written after indictment but by analogy found cases involving amended tax returns or tax returns that were filed after indictment serving the same purpose that is trying to show that the requisite level of intent didn't exist during the time period charged in the indictment but conclusion as the court has indicated and mr sheets indicated there is no law requiring a prescription for sue a federal in the state of iowa rather there are just certain limits on the quantities that you can can purchase or or how fast you can purchase it the two cases that we rely on in our brief radke and g m valvo both involved tax returns  post indictment filed tax returns the g m babo case was like this case a constitutional and asserted violation of the constitutional right to present a complete defense and that is how the argument is phrased here on appeal in geom valvo the court considered this sort of post indictment evidence in the context of the right to present a complete defense and held that there was no unfettered right to offer testimony that is otherwise inadmissible under the standard rules of evidence and what's remarkable about the case that we have here at bar was we didn't just have suspicious timing but when i looked at the medical records themselves that came with the prescription they make clear that she had come to the doctor  not necessarily with a complaint about some health issue or annulment but rather that she was being investigated for sue a federal abuse this is also attached to her amended trial brief where exhibit f is as well and the doctor says in the records quote i can prescribe small amounts of pseudoephedrine to see if this would be helpful to her and minimize suspicion of diversion the doctor expressly said  that also records make clear that he was not prescribing it for c o p d but rather for seasonal allergic rhinitis which wouldn't square with the defendant's position that she needed to consistently take a large amounts of pseudo ephedrine for five straight years seasonal is that because you're allergic to some blossoms on the trees things like that just like right about now small i presumed spring and fall but of course we didn't hear from the doctor on that specific issue the other thing was the defendant stated reason judge pressed mr sheets at the colloquy right before the jury selection about why this could be relevant and mr she said i think the evidence is going to show that because ms davis was receiving the heat from law enforcement in buying it and ingesting pseudoephedrine that's one of the reasons he prescribed it because he recognized it helped this evidence is not relevant and to the extent it is very marginally relevant it dayne the danger of confusion of the issues outweight it and the court should not reverse the jury's conviction for want of that evidence going back to the constitutional claim in which this is framed the seminal case in this area is the holmes case at the supreme court that was what the supreme court ruled was an arbitrary rule of evidence that banned a defendant from presenting evidence of a third party's guilt if there was forensic evidence in the record tending to show that the defendant was guilty it was just a bright line arbitrary rule in the words of the supreme court judge beam you are third your honor authored a case called west which talked about this a little bit and on page ten nineteen of that case wrote the constitutional right to this defense does not entitle the  admission of otherwise admissible evidence and i'm paraphrasing that what we have here we cannot find a case that holds that the application of the federal rules of evidence for  relevancy is applied arbitrarily and would violate the constitution of the united states rather this was awaiting decision if the court finds that judge made a final definitive ruling it was a weighing decision it was not an arbitrary application of rule us or any further questions i see my time is about up ok thank you thank you absent a cold headache and sinus problems when this case we had c o p t chronic and severe the doctor in his notes he was allowed to testify to this because it would have went to his treatment but he said in his medical reports that were given to the prosecutor i prescribe pseudoephedrine to her to divert this prosecution i can't remember the exact words mr roberts i just quot this offer proof issue why wasn't an offer proof of dr painter done well there are several ways to do and offer proof and if the court looks at the coll counsels offer proof the prescription and the definitive ruling that it's not coming in i think any experience lawyer would take that as ok we need to move on to what our defense is going to be now thank you very much i want to thank you both for your argument one of our newer newest district judges here in nebraska and if you don't know he was a law clerk for judge b and so we took this opportunity for three to brask judges decide here and try and  hear your arguments which required us to get some cases outside of rask it so i thank you for coming to nebraska and when we have cases no marks not unusual that we bring cases over but use it from the mourners  really happy to see mr sheets