this morning of the court's or the court i says court would prefer otherwise i intended to focus this morning on the st issue that to disappoint him properly instructed the jury that the wreckage provided to mr cooper were complete and heart of the nd issue that the district court erred by think it's necessary to provide it some time actually background specifically at trial the government rely don't experts to make its case to the jury and those experts opinions are based on medical records that they reviewed the government never introduced any testimony from patients or any witnesses who were present during an examination so the entire case was premised on medical records and a major issue a trial where the major defense at trial was that these records were incomplete mystical insisted that they were handwritten tea sheets that contain relevant information and that she filled out during the examinations and that these t v ads likely would have or could have changed the experts opinions because the experts never had access to those i think that we should be clear that there are two different practices that issue and the testimony about the fortress corruption was related to the nd practice marci family and it was only related to this rd particular subset of prescriptions that were at issue former th circuit or the th circuit before it became the th circuit and i think some set supreme court cases that have held that when the jadwin the court instructs the jury on a disputed issue a material fact in that amounts to a been affected other counts that relate to the other practices marci and so i don't agree with that here and i think that for this reason and specifically because the core instructed the jury that basically her i'm asking you what that has to do with the marcy right yes i'm sorry your honor i understand i think that that but when the court instructed the jury as to the family practice counts that affected the jury's bua both of her credibility and her defense counsel's credibility because she that was her defense was that these records were not complete and so when the judge is essentially telling the jury no that thing that she's telling you is not true that effects her credibility defense but i've had information i was acting wrong that that you don't know about yes your honor i understand that i'm not saying that that was her defenses to those counts i think that she deny that that was that that had happened she demanded that was true and so because the juries and the jury instruction that is at issue on her credibility into question and indicated that she and her attorney were not telling the truth then that that that to that jury instruction and lead over onto the other counts they were issue and so because the core instructed the jury something that clearly indicated to the jury that she was not being credible in her defense attorney was not being credible the your i believe so your honor i believe that he denied denied that in closing argument because i don't believe that he agreed to any counts and i will note that the the indictment didn't charge her with fraud  if that was it's the basis for the jury's verdict and so i get i think that was a very small subset of the prescriptions that were at issue and so you would have to take a very close eye to figuring out to see which counts exactly  affected the jury instruction issue it was your honor and that's because i think she never denied and i don't think that there was any really contest at trial that the the medical records the electronic records were not accurate so she did not deny that and so the problem is that these were prepared later they were prefilled forums and so the person who was  responsible for entering in the records was supposed to go in a diesel lacked irrelevant options and hear that appeal that did not happen and so that's the problem with relying on those medical records is because they're not giving an accurate insight into what actually happened during the examination and what actually happened during the examination was what was held on the written paperwork was on the t v sheets and because of that has it so she introduced the taishi showing that on that day trial she never had access to the handwritten t sheets your honor they were never provided to her and so that's the whole issue is that they were never provided to so therefore they were also never provided to the experts and so that if this is why they are incomplete and that's why their reliance on those electronic medical records was so problematic because they were a complete review context of this instruction is there was a document witness who is testifying about what records the alabama board of medical examiners had subpoenaed from family practice regarding fifteen different patients it turned out that unfortunately the with witness testified that the exhibits he was looking at had all of the records pertaining to those patients care which would include care given by other providers besides mr cooper when in fact the exhibits only contained reflects that the parties met with the witness to try to discover the best way to resolve this issue they came up with a stipulation essentially saying the records contained in these exhibits are the records relating to care of these patients  rather than the care of all of the providers that saw the patients the government raised a concern with a brady implication the concern being that there might be some suggestion this myth that mr cooper did not have access to the records regarding care about other providers admittedly the record is not as precise as might be helpful to the court but i think looking at the context you can see this was not an instruction to the jury that all of the records in the universe were in the exhibits or had been provided to miss akubra merely the context shows that this instruction concerned the documents that the board of medical examiners had received from family practice i would note as well and i may be mistaken about ms webster's position but i'm not sure that anyone is saying mr cooper did not receive the records that came from the board of medical examiners which would have included documentation of care from other providers i think there there may be some dispute in the record as to whether there are paper tea sheets out there that mr cooper had access to and the record does not show one whether those in fact  where it where they are i can represent to the court that as a matter of practice our office when we execute a search warrant at a medical facility does scan all of the paper documents in turn those efforts of the defense as a matter of practice be would be possible i would just know that the court is entitled to give instructions that would prevent confusion of the jury and certainly there might be an implied confusion for the jury as to exactly what records we're talking about which was so i think in context your honor it makes sense to view this instruction as concerning nearly the documents that the alabama board of medical examiners witness testified about looking at the instruction in context it's clear that the court was instructing the jury about the exhibits not necessarily about all of the documents in the case i would note to both dr sanchez who was the government's st witness testified extensively on cross about the potential existence of paper documents he specifically said though that those paper documents of the day of the providers encounters with patients were supposed to be put into the electronic medical record so although in one sense the paper documents may have provided some additional evidence the electronic medical record is supposed to be the record of all of a patient's care there was also testimony from sherry akron who actually worked with mr cooper as a medical assistant both at family practice and at mercy family health care she testified that she would input music notes into the system and they would sign off on those and there was never any problems with her medical transcription assistance i would also note your honor although  my friend on the other side has argued that this is akin to instructing the jury on an element of mr cooper's defense it is not all of the cases that are cited by the appellant deal with elements not with fact issue and so this is not the same thing for example as the court instructing the jury you must find that ms akubra distributed this prescription on this date it is a factual instruction designed to eliminate confusion  to that concern one i would note it is true that defense counsel objected before that was given before that instruction was given saying you know it's the government's burden that sort of thing there was no indication that this would well your honor i would again point to the context of this instruction as well as sort of what happened at trial i think the parties in the court based on the record were viewing this as a stipulation and an instruction merely about these particular exhibits not about all of the documents because i would have just gone to mr cooper as counsel sorry did she or did she not testify before the jury as to whether she got all these records before trial mr cooper i do not believe testified about whether she received the records before trial she did testify that they that she did her notes on t v she's ok so the jury wasn't told the judge's instruction did anything this quba testified to was faults was that's correct your honor and in fact there were a lot of witnesses that testified about these paper notes dr sanchez who is the government's st witness sherry akron who was one of the government's witnesses as well it was not exactly disputed that there could have been paper notes the dispute was over really whether that would have made a difference in the sense that the electronic medical records were supposed to contain all of the items that were in the paper notes and in fact there's a reference in our brief to dr odell's examination of a patient well your honor i believe that all of the records in the government's position were turned over to him as a coup but i would note this is the st time today the oral argument that there has been a brady claim made by the government would certainly request more of a do you mean did she agreed to that instruction or do you mean did she say that she hadn't received the records which your group or no your honor although i would note that she did not object after the instruction was actually given to the court i believe that may be unclear from my briefing for about i do apologize the defense certainly objected before the instruction was read outside of the presence of the jury but defense counsel did not object jordan or yes your honor so those would go to the mercy family healthcare counts those counts so just for the court's information at family on her own and so she needed collaborative physicians that would help supervise her one of those was dr vip love so not easy he came in and testified extensively to the jury showing them the difference between prescriptions he had written and prescriptions he had not written he had a specific manner of listing the controlled substances and a specific way that he signed his signature and he identified several prescriptions in the record i believe specifically with risp with respect to count forty six or  employees of hers at mercy family practice that said that they actually saw her at the desk signing other doctors names including doctors an audi and doctors and a sandow on prescriptions and so i think with respect to mercy family healthcare  there is certainly plenty of evidence about the forged prescriptions i would also note your honour's that to the extent that there are concerns about whether mr cooper was able to put on a defense regarding tea sheets and whether the instruction prevented her from doing so i think you can see from the record that neither the court nor the parties thought that was the case there was quite a lot of testimony about these written tea sheets there was also argument about whether the tea sheets would have changed anything dr kaufmann was asked and did answer that if he were given additional information he would evaluate it and might change his mind and the only evidence that was excluded in terms of his cross examination was impeachment that was specifically asked by defense counsel what she thought was missing and she told the jury that she thought her teach sheets were missing her diagnostic studies were missing urine drug screens were missing and various other things were missing and she was the jury was entitled to reject that that evidence from her or to believe that such evidence would not have made a difference because of all of the other overwhelming evidence in the case i answer yes so i would just point the court to the context of the instruction the instruction the thrust of it was to basically say although the exhibits before you today only concern music  your honor i think based on the record it was not the court was not instructing the jury that music quba had all of the records in the universe relating to the care of these patients i think in the context of the instruction as well as based on the way the parties conducted the trial cut the instruction was about whether she received the rest of the records from the medical board or go thank you your honor i just want to echo essentially way what you said which is that the instruction is does not make this sort of more nuanced position that the government is referencing is it does that is not  instruction that was provided it says all of each patient's records from family practice where however provided to defendant her counsel prior to trial all of each patient which is not what she agreed to and i think it's problematic for the and there is a crime about that curfew and so but there was that the whether or not the profumo actually came into the united states was actually disputed between the parties and the trial court made a comment that appear to resolve that disputed fact i sit by basically in telling the jury yes that perfume should make a mint and so in that case the th circuit reversed the conviction and held that it was reversible error and again supported the idea that it was not subject to harmless error analysis and there the court said a district court does not have the power to direct a verdict of guilty and instructions deciding a material fact issue as a matter of law or because they amount to a partial directed verdict of guilty and i would point to court also twenty three dollars additional decision and where the courts have repeatedly held that this is not subject to harmless error analysis it's that goat's decision edwards decision where the jury essentially very but the court essentially instructed the jury that a defendant had to actually admitted guilt and so all of those cases in the abundance of cases that we've cited in our brief the courts have held repeatedly and over and over that it doesn't matter how overwhelming the evidence is it doesn't matter because the jury is the defendant is entitled under the th amendment and has a due process right jurisdictional element are an element of the crime except you know which one of those cases is the strongest case or if the judge instructs the jury about something that doesn't have to be proven beyond a reasonable doubt  harmless no matter how conclusive the evidence a court may not directed verdict of guilt how so yes you're you're giving up your opportunity to respond to our question by changing the subject and you're a be harmless error if the court instruct the jury to enter a guilty verdict or instructs the jury that the defendant is guilty that's directing a verdict on all the elements to get what i'm asking you for do you have know your case but do you have any authority then if that judge this informs the jury about something that is not an element of the case that the government doesn't have to prove that's not subject to the harmless error it can be era but it is it not subject to the harmless error and if so which of the cases you've talked about say instructing the jury about a non element can't be to be clear i'm and that i believe that the cases when they talk about when the jury when the court instructs the jury on a disputed issue of fact that amounts to a partial directed whether they defend that knew about the agreement if it's a conspiracy against and all that but if it has to do with what was provided to the defendant before trial you have a far more difficult case of saying the judge instructed the jury to find that element again i'm sorry that i just want to give you a chance that's the problem i have with your position and will read