government convicted dr michael minus of eighty counts of drug trafficking based upon standards that describe the good practice of medicine but not a bond whether he was practicing medicine our contention is that given the indictment the evidence allowed in the jury instructions dr minus was convicted for the poor practice of medicine but not for the failure to practice medicine in summary our case can be summarized  how analysis the why in this country now is whether or not dr minus was practicing medicine or trafficking drugs that she judged by behavior for instance was in the alley selling prescriptions for unmarked bills or was he in an office examining people treating people and diagnosing people in treating people that's the how the court in this case however allowed the government to compare the how or the behavior not to a standard of whether he was practicing medicine but to two guidelines that are admitted unscientific arbitrary subjective discretionary fairly recent that don't themselves describe the practice of medicine and are two things wrong with this in our view the first and unscientific guidelines should not be allowed in these cases because they become the standard that's precisely what happened here his how are his behavior was compared to those standards not to the definition of practice of medicine and that's the second thing is wrong there was no definition given of the practice of medicine to this jury even upon request of the elements the government must prove to convict a licensed physician of tracking scheduled medicines is that the prescriptions were outside the regular course of practice and not for legitimate medical purpose litigants in courts struggle with this paradigm because these elements can simultaneously describe the poor or the disputed or the experimental practice of medicine that is not criminal criminal drug trafficking or they can describe criminal drug trafficking to clarify the distinction between trafficking and mehrabad medicine even intentional madness the supreme court and more and this court and feingold have directed trial courts to gauge a doctor's behavior against the standards of medical practice to cite more as quoted  feingold the question is did the doctor so wantonly ignore the basic protocols of the medical profession that he acted as a large scale pusher not a physician against this background the failure in this case is the court declined to tell a jury what doctors do that make what they do the practice of medicine instead the jury who is only told what good doctors do the court countenanced evidence from the government of two types to gauge a doctor minus behavior and neither of these standards define the practice of medicine the first guideline that the government put on was the doctor minus prescribe  hundred milligrams morphine equivalent or indeed he says the government's expert then said use of over one hundred  don't do mark whether dr minus committed a crime this occurred even though the record dress uncontroverted that no science supports how much morphine equivalent is too much in fact the government's expert testified it was based upon what some people would say that's at the supplemental xor a record for five for the one hundred milligram threshold is admittedly arbitrary according to the government's own expert and not scientific but nonetheless is fixed fictional construct was used as a bright line on the government's exhibit to demarc whether or not the behavior was criminal the purpose of the immediate construct is to equate the potency of different medicines not to determine how much is too much second the court allowed the introduction of opiate administrative guidelines over objection to show that dr minus did not follow these guidelines and therefore his behavior was criminal the court allowed this even in face uncontroverted evidence that the purpose of the guidelines is to check addiction and diversion and not to define drug trafficking or the legitimate practice of medicine the guidelines are by their own terms an art and not a science  islands and the guidelines are for seven non criminal reasons doctors often make inappropriate prescriptions and some of the court admitted a twin set of unscientific arbitrary discretionary guidelines against which the jury was left to judge whether dr minus was or was not trafficking drugs these were not the basic protocols of which feingold spoke these are our best civil standards of care regarding how careful medicine is practiced but not standards defining what is the practice of medicine this comparison of behavior to a civil standard was clearly called out and rejected by another district court in our circuit in the central district of california and two thousand fourteen by then judge preggers and in fickling judge progress in a rule correctly the expert could not gauge the defendant's behavior against either a reasonable person standard or quoting standards of care set out by a professional board or regulatory body or as to other legal requirements not part of the criminal statute saying quote again failure to meet such standards does not subjected person to criminal culpability under the control substances act and introducing civil or regulatory standards has the strong potential to confuse the jury as to the miseria required in the case comparing dr minus a behavior to a reasonable doctor or to normal doctors or other doctors or to any doctors which are all in this record and applying prescriptions over one hundred m e d or prescribing in contravention of discretionary guidelines is exactly what judge  we're sheff all of the court gave lip service to not allowing an expert witness to a pine upon the mins riya or the mental status of a defendant the court allowed the government to affirm over objection that dr minus did not prescribe for either legitimate or even legal medical purpose such opinions go directly to doctor minus a state of mind indeed at page forty five of his recent government admits expert quote ultimately concluded that the defendant intentionally distributed the controlled substances outside the scope of practice and not for a legitimate medical purpose what then is the protocol spoken of in feingold now that the government no longer is trial but instead advocates before this court that spotlights approves adoption quotes the correct protocol of page thirty eight of its brief from the fiqh lim case this is the quote unlike pharmacists the standard of care is much more clearly delineated for prescribing physicians they must examine a patient take a medical history perform appropriate tests diagnose a condition and prescribe medication that is consistent with the patient's physical symptoms health and history the sure jury should leaving the jury in the dark about one thing the one thing they needed to know to determine whether dr minus was trafficking drugs or practicing medicine that is what is the practice of medicine add to this misguidance the an allowable evidence of social harm caused by in our society today and there is little wonder it is a verdict for on some months it would it was adjudicated by this jury to have been the practice of medicine in his prescriptions later months it was drug trafficking and it flip flops again in later months to be again the practice of medicine and note that the diagnosis of the patients did not change counsel plus there are several witnesses at least who testified that he prescribe for people he never examined and he didn't even take a medical history and he didn't look at their medical history that's correct there was testimony to that effect except the examination part and those items that you're listing you are items found in this set of guidelines that sets out a list of obligations far in excess of examination diagnosis and treatment those guidelines provide and they're listed in government exhibit two fifty which is admitted in x server records six seventy three a list of the steps that those guidelines require which are all well beyond examination diagnosis and treatment to wit evaluation a treatment plan an opi trial periodic drug testing consultation a referral consideration of discontinuing opioid therapy adequate medical records and in this case they can be no prescription over the bright line of one hundred  he failed to jump those hoops the jury convicted and that is the problem with in imposing a civil standard into these cases where even the bad practice of medicine is not criminal drug trafficking i'm not here to defend how he practiced medicine or whether or not he'd want to malpractise trial he may well not have but he was practicing medicine under the definition and i know the indictment recites distribution in violation of the guidelines is a crime the judge bought it he wrote in his is order denying a motion to dismiss dismiss the indictment the jury will have to determine if minus was or was not complying with the standards of medical care and i'd hope based on the idaho be on policy so that was the standard whether he was not complying with the standards of medical care based on the idaho beyond we owe him policy and that's a policy that contains all of those steps so if he didn't comply with all of those steps whether or not he was practicing medicine it was criminal behavior even under the instructions of the government or of the court the government itself calls the guidelines in  benchmark so he was judged by malpractise standard the prosecutors in this case who decry use of a bright line rule in their briefing except their own one hundred imedi bright line this is perhaps in part because the department of justice is since special prosecutors all over this country for the sole purpose of obtaining opioid convictions this case demonstrates that a different bright line rule is absolutely necessary we must religiously avoid allowing experts to a pine that a doctor's transgression of unscientific arbitrary guidelines that are subjective and created for safety purposes equates to a doctor having no legitimate medical purpose the standard of conviction will change with the expert in the courtroom it please the court darcy ward for the united states that the jury in this case was properly instructed that in order to find the defendant guilty that they must find that he knowingly and intentionally acted outside the usual course of professional practice and without a legitimate medical purpose in accordance with this court's decision and feingold the defendant requested that a jury instruction be given summing from the practice of medicine as derived from idaho code section fifty four one eight  three the district court in this case correctly held that that was derived from a licensing statute and was not appropriate as the defendant wanted to set forth what the legitimate practice of medicine was that does not speak to the standard of care and it does not speak to the criminal instruction of how you would find the defendant guilty instead what the district court did in this case is it included an instruction regarding good faith in combination with the fin instruction in that situation the district court set forth an instruction thirty four beginning at page one thirty eight of the excerpts of record that the jury should find the defendant not guilty on counts where they determined that in good faith in medically treating a patient that the defendant had distributed controlled substances for a legitimate medical purpose that is that he had distributed them wofully and it goes on to talk about and in accordance with what the doctor believed the proper medical practice and so looking at the jury instructions as a formulation of the whole in this case the district court did not abuse its discretion in leaving out reference to a licensing statue instead it properly instructed the jury and that goes along with the discussion in this case of the board of medicine policy for the use of opioid analgesics in the treatment of chronic pain that's in idaho board of medicine policy that was derived from the federation of state medical boards policy in that case it also is in accordance with feingold this court found that only after assessing the standard to which medical professionals generally hold themselves can a determination be made to as to whether the conduct is criminal and that is what the board of medicine policy was used for in this case it was used to set forth that standard to which medical professionals generally hold themselves every expert during the trial both the government and defense had heard of the board of medicine policy and the defendant himself during testimony at excerpt of record three sixty three noted in response to what the purpose of the policy was he testified that its purpose has several reasons one is certainly awareness but also to aid practitioners in the prevention of the misuse an abuse of chronic pain medications and later during cross examination admitted that many of the concepts contained within that board of medicine policy were global concepts at s e r six twenty one that accords with the testimony that was provided by the government's experts at well as well that this was really looking towards a standard of care then the government's expert dr moore in particular if course when we think of standard of care we're often thinking of malpractise cases and tort cases in state courts so what's to distinguish between a doctor who doesn't meet the standard of care doesn't perfectly diagnose and treat and someone who actually has no legitimate medical purpose for the treatment had how does the jury distinguish that here the jury first understand your honor the idea of what physicians do in this case and then it makes a determination and that's why the jury instructions are important as to the fact that there was no legitimate medical purpose and the way in which the government discussed that was not only testimony from individual patients but also then the government's expert went through patient by patient and count by count looking at the different prescriptions the medical records that were provided and that information and determined that each of these prescriptions that were written by the defendant were written without any legitimate medical purpose and written outside the professional practice and that is supported by the evidence for example your honor looking at one patient and this ties in somewhat this concept of the morphine equivalence dose one patient testified about the different prescriptions that he had received and dr moore the government's expert went through that and calculated that on average his morphine equivalence dose was one thousand and seventy five a day or more than ten times the general consensus and that can be found at f d r five twenty that particular patient at varying times received in addition to other controlled substances a number of opioid narcotics fent morphine hydromorphone and that patient himself described that while he was taking these drugs that he was a zombie couch monster and that his body was physically deteriorating the government's expert after reviewing the file not hearing that patient's testimony said dr morris said if he were still alive he would be severely intoxicated at s c r five twenty six this looks at that analysis where you're considering what this patient received based on his board pharmacy records the prescriptions the defendant wrote the as dr moore describe it other times the astonishing mount of pain narcotics that were given to these patients and then you're hearing from this actual patient who is describing very similar circumstances and in reality these prescriptions based on similar testimony from other patients one patient received fifteen hundred oxy code on thirty milligram pills in one month at one point and then on another month may receive twelve hundred and then also received prescriptions for fentanyl patches that goes in this idea that this was really beyond any type of legitimate medical purpose and the morphine equivalence dose in this case was described by d a recommended threshold and by dr moore as a cautionary zone or a consensus it was not presented as a bright line rule however what the jury was presented with in this case was a way in which as dr moore put it to compare apples to apples this defendant was prescribing opioid narcotics various different types as noted and so in order to put these all in a place in which you could talk about them together they had to convert them and in this case the morphine equivalence dose was used this was a standard that all of the experts were familiar with and the defendant himself told officers during his interview that he had calculated and media and noted that he was on the mark about half the time that s e r six twenty three to six twenty four yet when he has a patient who's averaging a thousand and seventy five and media day it seems clear that the defendant failed to partake in calculating that or if he did simply did not care that he was not practicing medicine but was acting to distribute controlled substances to all these patients and so it was set forth as a type of tool again so that apples to apples can be compared experts in this case after reviewing the defendant's record noted that extraordinary treatment requires extraordinary documentation the defendant's actions in this case were extraordinary to the extent that he was prescribing so much oxy code on   to patients who came into him on their first appointment and admitted that they had had problems for example with tramadol in the past and receiving suboxone to detoxify him as was told to him by one patient that s e r two sixty one to two sixty two and yet that patient is the one who received up to fifteen hundred oxycodone thirty milligram pills in one month another patient came in and a review of the records in that situation noted dr morse that he was receiving an unheard of ridiculous amount of medication and that was for patient j n the government prescribe it provided the court was some of the prescriptions in this case that were written to that patient exhibits fifty sixty or sixty and on the the face of those prescriptions are misrepresentations made by the defendant this idea that these prescriptions were being written for thirty days at a time when prescriptions are being written on october third october seventh october twenty first october twenty eighth and november eleventh looking at all of this your honour's the district court correctly decided not only to uphold the sufficiency of the evidence in this case but also improperly instructing the jury as well as performance gatekeeping functions as set forth in alex or for whether or not certain types of expert evidence should come in and so for those reasons your honor unless the court has any additional questions i would ask that you affirm the district court thank you two minutes very bow thank you very much your honour's counsel said that these guidelines were the standards to which medical professions generally hold themselves i don't take issue with that very good practitioner practices pain control is that however the medical protocol spoken of in fine gold no it's not it's whether you're practicing medicine where you're practicing good medicine to those standards average medicine bad medicine or intentionally bad medicine under the more case are you practicing medi i've done that it calls for those kind of behaviors council says no documentation some of the cases and they were convicted counts and were convicted according to what the jury ultimately said afterwards it's in the record because of those violations but that doesn't mean he wasn't practicing medicine i just means dr moore who testified on behalf of the government didn't know what he was doing the problem with comparing and putting these simple guidelines into the record is this kind of confusion and it is compound by the refusal of the district court to define for the jury what constitutes the practice of medicine vs criminal drug trafficking i would ask this court to straighten that out and i would ask this court to reverse for lack of evidence thank you thank you thank