interesting mix of cases for the weekend today is no different as we used to say with electronics we read the record in a pretty adept on what's in here so your arguments will help us to report says agents pitch the possibility of shahr cooperate or codefendant participating consensually monitoring and recording face to face and telephone phonic conversations with some of the target accusatory and that's during this time you're on and that the government of recorded interviews with dr d is and his co defendants are on two occasions this was in the st circuit nine hundred and ninety three dollars in that case it came out against me but their government was investigating a future crime not the current crime but it's pretty clear there and other barlo forty one rd thirty five to thirty you're not arguing at this point or are you but he was interfering the char's conversation interfered with the attorney client relationship you're going beyond that i'm messages when they come but i'm not going to volunteer information sources what's your attorney say and nothing but they've got us we have a question i'm not going to tell them anything you don't know this was used to indicate he is was stonewalling and sort of breaking up the story but when in don't remember randy when is important because he was the owner of the pharmacy that was selling this home pound bennis and that that created such high bills for traquair insurance as i know you don't know him and then he keeps feeding him information he sent me the stuff for you to put in the charts you don't have the stuff with his handwriting there's the one on the chart that he set with the patient information at two thousand nine hundred and eighty nine i don't know randi the only people that were present when i went after i gave the prescriptions and saw the patients some of them had their spouses then sharp pushes again but the patients know randi and these people talk to the patients dr di as i know randi i i know they don't read it i don't know any of never met him never talked well he's the guy that brought us some around well believe it or not i didn't know that until you just told me and so it was this this exchange was colored with instead of sharp providing disinformation agent no as dia sort of stone g saying well i'm i you're my reference not randi that was used in fact literally just say that doctors do is was as i said stonewalling and trying to be willfully blind so to speak to the offense conduct the intrusion for the th point was also used in other ways of judge jones it was used to indicate when he said the doctor it is these e the doctor to replace folks who'd previously been prescribing this medication and dr d a was it and to feed him information about the cost dr drew has had no idea and no concern about expenses he charged patients nothing for them he submitted not a single claiming need not a single dime this case is extraordinary in that regard and he asked on these recordings shark how much were they charging shark i have no idea but it must have been a lot to which  replied you cannot abuse the government and this was turned on on its head and used against dr ideas as somehow he was aware that something was abroad while there were over two hundred prescriptions there were but your honor if you look at those prescriptions you can see most of those are coming pay as you can actually see the why that where people are writing in information and sure said he got oprah scription and recycle them that's in the record and in his testimony and so what we have here is dean's was prescribing a just for example dr thomas who testified for the government said tony a prescription for someone you have not seen is sort of a general state medical board violation that is not a violation of cream but in another application with regard anaesthesia that's right but he did have male patients always krypsis that issue though they were coming in whole new frontier writing prescriptions for medications in an area where otherwise i pharmacy within the building where his office was this prescription cost maybe five thousand and sixty dollars so it was a small favor to do for medical rep it seemed something small to avoid help then the next point i'd like to discuss is jury bias and implied bias here we have the extraordinary circumstance where just before the case was going to go to the jury and the jury was to be charged the court called everyone in and s the marshal this morning told me that one of the jurors came and said she'd been threatened by the family of the defender the court noted how extraordinary this was at six hundred and eighty one i've never had anything like this come up and john present your honor and try the case immediately move for a mistrial at two thousand five hundred and sixty two the brig's case tells us what we do when we look at implied bias of a jury as we look at all the facts and circumstances and we do not situation that was created creates suspension emotional involvement of the jurors this juror king forward hedrick involved here indicated that if things went past wednesday in this trial that she'd have some one of the other jurors became substantially emotionally involved the one who sort of came late and wasn't interacting with everyone else was our appellate twenty five in fact the juror had told them he she had been intimidated and eighty eight of the jurors told her you need to tell someone about this you need to tell the judge need to tell the bell if you need to report this many accompanied her to launch to make sure she felt yesterday to today so that they couldn't phone me and well i didn't get bombed you know well my car didn't get bombed she told the jury at least six hundred and sixty one juror williams it please the court and o'connell adams on behalf of the united states dr d assigned prescriptions for medically unnecessary compound medications some of which contained a controlled substance for two years without seeing a single patient through that scheme dr diaz and his coconspirators cons trying care of federal health care benefit program to part with millions of dollars to cover the unnecessary medications and when government investigators contacted him to see what was going on he falsified patient records backdated them in some cases even made up vital signs for patients that he never met the evidence is far more than sufficient to sustain all of the convictions that the jury returned i'll start with the issue of the reportings counsel for mr diaz is focused on the th amendment here today the th amendment right to counsel does not attach until the initiation of formal charges or adversary judicial proceedings that is a decades old doctrine of the supreme court moran versus burr by and many other cases it's based on the text of the th amendment which says in all criminal prosecutions the accused shall have the assistance of counsel for nt right which is a right meant yes it can be done it certainly does not attach when somebody becomes the target of a grand jury investigation in those cases the case is still in an in custodial interrogation it's been superseded by miranda there's a whole different way of analyzing those custodial interrogations now the key point is that the th amendment right to counsel which is what counsel's argument is based on position of the professional responsibility office for the department of justice is that covertly pre recording investigative communications by undercover agents or cooperators fall within the exception that a communications  the process may trigger so in the facts here when the target letter was sent out to him there was no early engagement of counsel not because of but because of the target of the family so in the sequence of events despite the fact he got a target letter i take it he did not engage counsel in news so it didn't affect your will whether he engages counsel or not doesn't affect my argument even if a person is represented by counsel it's our position and this court has held that that doesn't implicate the professional conduct or all four point two that the government can send undercover agents and cooperators and to communicate with such a person even if we know that the person is represented by counsel the under the ethics rules the government should not do that if it's come to some kind of an agreement or represented to the council on the other side that it would not do so without notifying counsel but there's no allegation that that kind of agreement was reached in this case and it was not the attorney client privilege portion of this is connected to the ethics rules so when a person is sent in to to cooperate or or an undercover agent to talk to somebody who's represented there's a separate ethics rule for point four that says you have to be careful not to violate the legal rights of a person during such an interview cooperators are regularly warned that they should not ask about attorney client communications during such conversations and in this case the two things that in that you know could arguably read to be to implicate the attorney client privilege the st one was in the september th meeting when shar says did you talk to your attorney that it was not he was not trying to get to what the communications were between diaz and his attorney he was asking it in the sense of do you know what's happening are we going to be interviewed that type of thing in the other meeting in january th and the language that the defense is focused in on is did you tell your attorney about tom lee and when the district court analyzed this what it said was that was clearly meant to elicit an admission from diaz on the tape that he did know randy tomlin which he did and which she was telling shar in that conversation and he was not going to admit that he knew him and not going to say that to investigators even if those statements or those questions could be read to implicate or intrude on the attorney client privilege doctor dia's didn't disclose any privileged information in response so there is nothing to be done here the relieved that the defense was seeking with this argument was suppression of evidence united states versus hines a case from this court on said that if there are violations of these ethics rules suppression is not a remedy that is warranted nor would a new trial be warranted or dismissal of an indictment or anything like that if there's violation of ethics rules which again there were not here that remedy would be some sort of disciplinary sanctions against the people that violated the ethics rules but certainly not suppression of evidence that could move to juror is a close relative of a trial participant a juror is a witness to the crime things like that there are situations where there's an inherent perceived stake in the outcome of the case that was also the case in the the defense relies upon for a jerk was arrested for bringing a gun into the courthouse during the sentencing phase of a capital murder trial the idea there was that now this person will be a criminal defendant prosecuted by the same people that he is sitting in judgment of and so a person in those circumstances would be likely to vote in favor of the prosecution to garner favor the circumstances here do not present the same type of inherent stake in the outcome of the case that are present in those scenarios the jurors did walk juror number one to her car and eat lunch with her the judge concluded after a very thorough investigation into the juror that was crying that it wasn't because they thought she was in any danger but simply to be nice or her the other jurors it's clearly didn't take her seriously and i think it all came to fruition when a few of them were waiting for her downstairs at the courthouse and she blew past them and mashed the elevator button went up stairs and said it happened again and they were waiting for me again and they said no that was us which embarrassed her and cons her to start crying when the jurors were interviewed about it uniformly they said we think she was just overreacting or maybe she was a little bit paranoid but there's no way that this would  affect my ability to do this case it was all kind of just a sideshow and the district courts careful consideration and where they move forward including having each juror come in and give a statement about what happened and doing it all again under oath at the defense's request ensured that dr diaz had a fair trial not in front of the abayas jury let me that says not knowing he was raised about this on appeal but i was wondering in light of the some modest sentence of the court how do you arrive at three over three million dollars in restitution the three million dollars restitution amount was based on patients appeared trial yes several of them appeared at trial to indicate that you know some of them were told that this was a experimental drug that they could receive payments in order to try it which is why the medications kept appearing without people complaining about it but several of them i think four in total appeared at trial to indicate that they never met dr diaz before this medicine started coming that in some instances he came to used to try to meet with them and create patient records afterward they were all shown in the patient records that were created you know one of them liane hardwick hid in her bedroom while dr does was in the house talking to her husband yet her patient record came and eighty i'm not exactly sure his age i think he's eighty your name is not on the briefs it's not i believe that the attorney who our wrote the brief is on vacation this week asked for the argument to be rescheduled so i was reassigned to instead and have learned about the case myself a couple of additional points one i'd just like to talk about on the stand for a moment defense counsel indicates d dia's only signed a couple of these prescriptions and that was one of the main things that the defense tried to put on a trial that these prescriptions were somehow altered in some way or that mr sharp perhaps created some a stamp and was stamping doctored is his name on the prescriptions shard testified to the contrary at trial and the jury was intitled to believe him the standard for this court to uphold the verdict says that if any rational trier of fact could have found the essential elements of the crime beyond a jaish are and it came out at trial that some of those were also stamped with that same signature stamp that appeared on some of the advantage prescriptions and so it's not the case that you know dr diaz did testify at trial that i had i don't think i signed  signature stamp must have been used but j sharpe testified that he never asked anybody to use a signature stamp unless dr di has had already specifically approved those medications also one other quick  point the story the doctor diaz was telling and that was being concocted on one of the reported conversations that these patients were given to him by the v a these are people that were being treated at the v a and now they could no longer receive medications and that this was an altruistic way to help out veterans you can hear that story being created on one of the recordings but also the people that were covered by trying we're not presented presented to him as people that were covered by tri care and connected to the military constructing stories when in fact he was saying to resisting short trying to feed him information i don't know randi i'd guess he's the one who supplied you the patients well i know you don't know randy but he is the one and branding nicholas prescriber the medication at one thousand seven hundred and seventy nine dollars and that this was a follow up on that claim that her husband worked for the insurance companies who would pay for the medicine at a range her son was randy the randy who owned the pharmacy that's seven hundred and eighty six he also had scars from skin cancer at seven hundred and eighty six and he indicated that the medicine had helped him although he complained to his wife  he was receiving quite a bit of it and the doctor came in exam to have it as well and took his medical information correctly and he even relate a story that they had discussed a plane that he had for them they really had these medical complaints yes they did use the creams and when the doctor got information about them they got them from family members the doctor i couldn't recall incorrect my st opening was dr cooper the government listen to testimony that physicians write scripts for patients they don't see it two thousand three hundred and seventy and give that partner example of the government eliciting testimony saying asking the defense witness to agree making is proper together for the family members as well otherwise you know infants or people in distress couldn't receive medical care if you testify she was afraid of him and did not she said she was just uncomfortable she didn't say she was afraid