my best to gary a musician is a bit of an unusual venue question because what we have here is a an obvious form shopping essentially by the government agent so i know the courts think that became an issue below the defense lawyer at trial did bring it to the court's attention at the beginning of the trial that this was going to be an issue he made a motion for judgment of acquittal timely to why they took it to the eastern dish eastern district of texas when it was clearly a northern district of texas case but nevertheless the record is clear that it was a northern district case that was taken to the eastern district and so i think the court needs to have to take that big picture when you're looking at at the facts of the case to see whether venue was proven by preponderance of the evidence the problem with these cases is that the gover and among the problems with the case is that the government's position at trial and this was the basis for the trial court for the district court's ruling that there was a venue was that venue was established in the eastern district t because the patients who were receiving the prescriptions from doctor the name of tali some of them filled the prescriptions in the eastern district of texas and that and the government's argument was they were coconspirator wars because of the actions th court judge disagreed with that the government disagree with that but now on appeal the government concedes that they were in correct in their argument below and that in fact the patients are not and were not they made in the court below and essentially what this comes down to at this point is whether or not the actions of the patients in taking scription like take one particular patient that goes to garling or goes along castor in the northern district of texas gets a prescription from dr naima tali for these drugs and fills it in plano in the eastern district and so the question is whether or not that cited in our brief that the law requires and we cited cases as well as the conflict conspiracy statute that essentially what it comes down to is you have to have an overt act committed in the district of the prosecution so there has to be an overt act committed in the eastern district and an overt act is something committed by a coconspirator or in order to further the of cash payment received but no but no younger no different than any buyer seller relationship in any drug transaction and sensei a buyer in a drug transaction and the value that the doctor receives writing is without regard to where that prescription is feet in that right absolutely and in fact it's eat for his purposes assuming he had some criminal purpose it's complete when he gives them what they want which is the first that's right he doesn't even have any interest in where they even fill the prescription and he makes his money because they're paying to come in and see him and he gives them a prescription and so and his coconspirators were all people who worked in his office and so everything that was done by the four people that were chars in this case were it was all done in the northern district of texas you know why the indictment was filed in the northern district as opposed to the eastern district this seems to happen quite frequently you know filed in eastern district as opposed to the northern district i don't know that you're asking me to speculate but i'll be happy if the government you can ask the government downs up a lot of it does come up a lot and i know that some of the cases we've cited is where it comes up and i think that's a good question for the government i think it's obvious that the agents here took the case to the eastern district that they did this entire investigation of his clinics in lying castor and garland an entire investigation of illegal activity that they that all occurred in the northern district yet they took at the same district for some reason that i have a speculative reason which i won't share with the court but nevertheless i think this is unusual because of that circumstance you have a lot of cases that both sides of have discussed in our briefing where cases wind up being tried in a district where other districts may have have an interest in the criminal activity or their criminal activity crosses multiple districts and maybe even some cases where there is another district that has a greater interest than the particular district where it's tried but i don't think any of us have sided in any cases words obvious that there was a forum shopping to seek out a particular district i think that's what makes this particularly different it's it seems to me that this is an important case and in the end in a sense a case of first impression because what you really have is is a situation where criminal activity in the northern district of texas under the constitution what should be done with that should be decided by prosecutors and juries in that district and so you're taking criminal activity in the northern district and you're letting the u s and i expect that's probably what would happen under the circumstances or i did want to point out that i think this is important the romans case which i know the courts familiar with in particular judge costas concurrence in there were just cost it was cautioning although he recognized that the court absolutely correctly applied the law and so he concurred in the court's opinion there but he was cautioning i guess the entire system including the eastern district of texas concerning  stretching our our subverting the venue requirement to snatch cases that really aren't supposed to be their cases and i think this that warning that judge costa was given this case goes directly to what he was saying with one major difference is that here i do think the law is going to is going to dictate a conclusion that the eastern district didn't have the new whereas in the romans case the court found that they did have in you i think it's important to to you the case is won and what and let me let me back up for a second i don't think there's any question in ott i would be surprised if the government tried to defend this i don't think there's any question that everybody agrees that the that the most up propre it then you for this prosecution it was was in the northern district of texas i don't think that the government can make an argument that the most appropriate venue was the eastern district so you begin with the fact that they have done something that they shouldn't have done in the first place and then the question is whether they can slip into some interpretation of  to do it so i think that's what's important for the court to keep in mind this if i could i just want to make a couple of just brief comments on a couple of other grounds and that concerns the comments that the prosecutor made during his examination dr naima tali cross examination one basically saying you don't have any other doctors here to say what you did was ok and then the second question was essentially you don't have any of your patients here to support what you're saying and the law from this circuit is clear that it is improper for the prosecutor or for either side to kamiya upon the failure to call a witness who who is equally available to both sides the government i don't think the government makes a serious contention that these witnesses were under the control of the defendant because we don't even know a particular person they're just saying you didn't bring in any doctors here to say you're right you didn't bring in any patients to or to support what you're saying so these are clearly improper comments that prejudice the defendant i think there's some  there's not really ambiguity we make an argument short argument that there should be a constitutional error although we recognize that the court's cases don't treat this type of error is constitutional lawyer but nevertheless it is something that we would urge t court to reverse on also well the charges given right it was in the jury instructions that the defendant is not required to bring forth any evidence that the defense counsel requests that the charge be given at the time the prosecutor made these address this case was presented by the da to the northern district of texas the northern district of texas declined it was then brought to the eastern district of texas in the u s attorney for the eastern district of texas has a significant interest in what happened here i submitted to the courtroom deputy this morning certain exhibits that were admitted at trial in the first two on the first two pages show the first patient page shows about twenty five thousand instances where a doctor named tali issued illegal prescriptions fourteen hundred of those one thousand four hundred  and that's where we believe the appellant confuses liability for a three seventy one conspiracy versus venue for an eight forty six conspiracy the cases that they cited the reply brief are three seventy one cases four eight forty six conspiracy cases of course no overt act is required for the crime but this court's cases recognize that and overt act and act in furtherance of of the conspiracy in the going back to romans although throughout the course of the trial now the government was representing that it was coconspirators who were patients your honor that came up in argument outside the presence of the jury before the court and that goes to part of the confusion there i believe was because venue wasn't raised before trial i think everyone's instincts on the point were correct the first judge crone and this really said look i don't think the overt act has to be done by a conspirator so a lack of for side or the knowing about argument would be made in doing appropriate case law and there was testimony that these drugs were distributed in the eastern district of texas what was lacking was evidence of you know  the closing argument what the prosecutor argued was look this this case could have been tried in oklahoma arkansas eastern district western district why because that's where the patients were filling the court cites language that an overt act for purposes of a continuing offense under the general venue statute can be that of a single conspirator or even an innocent agent who is acting at his direction in what is a prescription but an instruction a direction to fill a specific drug and that was done in the eastern district of texas there you go to the doctor the prescription be it was he had an interest the prescriptions be filled for two reasons one that he wasn't ratted out if he's writing all these illegal prescriptions and the patients don't get their drugs there's a possibility they could go to law enforcement or come back and complain or riot or whatever and too there's no question that a lot of these patients he was giving these illegal prescriptions for were drug addicts so he has an incentive for those addicts to get their drugs get their fix and come back to his clinic that's how he received you know for example the two hundred fourteen thousand dollars in cash that was found in what having that economic interest to her and saying that's not that's not enough to make a conspiracy but we're not saying that the doctor was conspiring with the patients the conspiracy was within his clinic what we're saying is that the overt acts which again we believe that the law supports does not have to be committed by a coconspirator in the act that bad that he's acting as if that the patients are the innocent agents here acting at the direction well they're not in this and in the sense that they're receiving illegal prescriptions but they're in this in the sense that they were not alleging now that doctor his wife who was the office manager and the workers within the clinic and they paid to know that that herman did not go beyond the bounds of the planet qualls much less the statute that requires that the overt act be committed by a conspirator twenty one u s c a forty six is the drug conspiracy statute and there is no overt act requirement based on the shivani case from the supreme court a case that's come out to your attention between the time you file your brief an oral argument so that one or did not make it into the record because i was looking for it couldn't find it but then i realized that i think it got rejected ok ok going specifically to indiana and he was saying that even though the law supports venue in the eastern district because the proceeds travelled through here what you look at is the community interest in law enforcement and really kind of where the drugs were delivered where the effects were felt and that happened one thousand three hundred times within the eastern district of texas it would be extremely odd we believe for a drug conspiracy where the drugs were actually delivered in the district for that not to be a district of proper venue and judge casa talked about the community's interest in law enforcement and here we have the u s attorney for the eastern district of texas in the midst of the  are protected and you also have the difference from from romans it's just the proximity issue i mean there was an idea in that two were reluctant the people in northern district maybe need more protection  ones in the eastern district in this particular case only six percent of the prescriptions were filled in the eastern district where older whereas the government declining a case when ninety four percent of the here in a terms of just the overarching constitutional concern and the concern that defendants be tried in their vicinity where they have their support system where they have relevant witnesses and on the third page  thought this was a very strong case and it was presented to the northern to sort of texas they've rejected the u s attorney's office correct ok or not and then they came to our district and they have a strong interest in this case but going again to the you have plano residence and it just it just goes to show that there's not a some remote location of you know concerns by the colonial for example that was cited in the declaration of independence garlands office and there was testimony at trial that just your ordinary primary care physician is typically within ten miles of your residence so it was certainly foreseeable to d ali that some of his patients would be coming from the eastern district of texas and this court i could not find where it required a foreseeability requirement for venue purposes it's foreseeable that they may be field in a certain venue then it's reasonable for him i guess to expect that he could be indicted prosecuted and that's what you do well i think that's the argument you're on or any cases that foreseeability there's actual knowledge or presumed actual knowledge i would hope that the doctor has knowledge of what's in his patient's charts of where they live where they live and we don't unless that's relevant to his medical treatment where i live i don't know how that matters to my doctor if i go and i get flu like symptoms when not only my residence is important not only where they live your honor but also that they're filling his illegal prescriptions the eastern district and that's what this exhibit shows and not only dr mehmet ali i'm self even though he might not have specific knowledge of where these patients live or have been in his office workers would by reviewing the charts and they were also not matter if the recipient is an innocent third party in this is the quote the law does not require a defendant have actual knowledge the overt act will occur in a particular district to support venue at that location at moat at most as at the overt acts occurrence in that it but you usually it's perceived as an additional burden on the government rather than a benefit so we're not saying that there there is a foreseeable a reform but if there is we've certainly made it here given the proximity given the information oh no the foreseeability was not but what was what was argued was that look this case could have been brought in any number of districts because of where the prescriptions were filled where it where the patients were coming from an act that initiate perpetuates or completes the crime is all that's required for venue in the filling of the prescription is an act that perpetuates the crime because the customers get their drugs and  just just briefly a couple a couple of points i know this is a complicated area of the law and it sounds to me like the government is subtly shifting their position again from what they said in their brief and if i understand the government's argument today is they seem they seem to be saying that you don't even have to have an overt act in the district of the prosecution and maybe i'm misunderstanding  brief they said specifically venue is proper in any district where an overt act occurred so if they're trying to shift again then a little confusion ought to give that some thought of it where we are now on that but nevertheless the idea that that there's something different about a drug conspiracy and a three seventy one a regular general conspiracy as far as venue goes is a new argument that i don't believe that they've made before and i'll have to give that one some thought also the closest they've come to any assertion that you can have in you i mean i thought i don't i don't i mean it's clear that you have to have some kind of overt act in the district where it's being prosecuted if there are shifting wife and i don't think the court's going to find the law supports that but the closest they've come to saying that that can be done by somebody other than a coconspirator is to argue that that can be done by some body who is not a buyer seller relationship between these patients and doctor naima tali just like any other kind of drug case so a buyer the whole point of the case law about the buyer seller relationship is that is that the b is not part of the conspiracy so here are these patients are certainly not being directed by doctor name the tali that wouldn't that would require the government to say dr name of holly told this patient to go to walgreens pharmacy on fifth street in plano to phillis prescription and that's clearly not the facts that you have here just to clarify one thing if i said this i didn't mean to say that the d n a didn't reject the case the d n a brought the case the case of that so they took it to the eastern district and a nother aspect of the government's argument that having a little bit of the difficulty following but they argue that the garland clinic is close to plano and therefore the garland clinic is close to the eastern district of texas but what difference does that mean that you know just because you're close to another district doesn't give that district didn't you try your case in to the extent that