and from the middle district of florida he comes to us with a great deal of experience having them private practice been on the florida state appellate court and then having been appointed to the district court bench in two thousand  rather good morning i am david weiss wrote i represent a talent it would feldman may have pleased the court i'd like to focus my argument on the first issue that we raised which challenges the imposition of concurrent twenty five year sentences for counts two through four of the indictment which include a component of which rather is a twenty year mandatory minimum as to each of those counts and those mandatory minimums were also run concurren so section eight forty one of title twenty one sets forth some broad prohibitions regarding controlled substances a one prohibits the distribution be to imposes a maximum term of five youth for schedule for drugs that are distributed and section b one c imposes a maximum sentence of life and a mandatory minimum of twenty years if death resulted from the distribution  got on three counts right correct all those subsections were charged in counts two three and four and so the indictment as to each count listed the specific return verdicts systematically and pursuant to burgeon all in which would address the aggravating elements and so as to each count they found appellant guilty of dispensing or distributing schedule two and four drugs the drugs that were charged that they found that death resulted from quote the use of one or more of the listed controlled substances plural and then very scheduled tuesday and all problem which is a scheduled for and the jury checkmark all of those indicating death resulted from the use of all of them and they did likewise for counts three and four checking off all the schedule but for causation that the schedule two drugs which is what the one c controls has to be the but for cause of the death charged in the particular camp what burrage specifically did not include in the but for analysis was a contributory cook cause of death so the government wanted in bar it for there be for there to be a wider ranging cause of death that would apply for the twenty year mandatory minimum supreme court rejected that approach and stuck with the but for for the schedule two drugs of course under all liens the jury must fin specifically the aggravating factor that results in an enhanced mandatory minimum so when you put the two together argument is that the jury was required to find that a schedule t drug was the but for cause of death in order for the twenty year mandatory minimums to apply and counts two through four these jury verdicts don't elavil for that pam you're saying they essentially did exactly what barraged says you can't do a cocktail of drugs together can't be the basis it has to be but for the schedule one or two drugs that match your argument that that is the argument and i think there's a reason why they chose to do it that way and that's because when you look at the cause of death testimony from the medical examiner as to each of these three individuals the cause of death was multiple drug intoxication but i thought in that for at least two of the victims there was testimony that the schedule one or two drug would have been was sufficient to cause the death it was the testimony was very mixed so the legal cause of death that the florida statute requires the medical examiner to issue as to all three were multiple drug to as to for instance doctor thought martin in count three he said the oxy code on amount was not lethal you know he would not say that the individual would have died without the schedule for dr wilson for instance as to count four he was the medical examiner he said it was multi drug toxicity and even included a drug that was not prescribed by d and as to joey mays the testimony was the death was due to multi drug toxicity he listed the three drugs and he elaborated on his testimony at three sixty seven page two fifteen it was a toxic combination of all drugs which led to the death the argument really doesn't turn on the evidence and whether the resemblance and that does it it doesn't your argument turns on what the jury determination the but the reason why we go back a little bit to the evidence is because my sense is that the indictment alleged the counts the way it did because you had this medical examiner testimony that examiner findings as to the multiple drug toxicity asked each of the three individuals i mean the government was sort of stuck with that  specifically limited to just the schedule two drug that wasn't again done here because of the way it was charged in the indictment that the listing of the schedule tuesday and the fo did you challenge the verdict form as being misleading or incorrect in any way counsel had challenge at rule twenty nine time the inability of a jury to be able to find death resulting solely from the schedule two drugs but at the time of the jury instructions it was and preparation the verdict forms it was clear that the district judge was going to include all the drugs in the instructions and in the verdict form because that's what was charged in the indictment alyque to the docket to try to figure out what had led us to what seems to me a very problematic verdict form from the get go and i saw that defense counsel may not have been here but defense counsel had tendered a different verdict form is that accurate and it was a verdict form actually that would probably have avoided this problem had it been given to the jury i honestly didn't look at that t ender verdict form because it wasn't ultimately i think when they were discussing the verdict form i think counsel said he was willing to accept the government vertical and again the judge at the district judge had not the jury form necessarily was always going to be a problem but as it turns out here it didn't help the government by having them check everything right and they could have asked them to just check the schedule  thank doing well good morning your arms may please the core i'm thomas burns and along with mike stanton we represent kim feldman let's talk about double jeopardy insufficiency the double jeopardy issue is really all about context of what happened during that hearing to declare a mistrial the district court needed to determine whether kim feldman consented to the mistrial and if she didn't whether there was a manifest necessity for a mistrial our position is that there is neither express consent nor implicit consent  i don't understand the government to be arguing that there is express consent here because there was no strict compliance with rule twenty six point three instead the government's argument is the rules say it says an opportunity doesn't it doesn't refer to giving counsel an opportunity can texas out context is so important in those hearings because here i think that misspelled mrs feldman's counsel understood the mistrial being directed only toward  feldman here he answers a question when he's asked about prejudice and he says well i agree that there would be precious but implicit in that answer is the prejudice would be to dr feldman and the district courts response that is like well i don't even understand how this would be prejudicial to your client because it only concerns dr feldman and so from that point he's more or less silently like well this doesn't even concern he meaning the trial lawyer for mrs feldman this doesn't even concern my client this is all about whether a mistrial is going to be declared as t dr feldman and then you know that the district court certainly anguished over decision i mean there's like proceedings the first day when they hear that when the questions after proceedings the second day he's thinking a lot about he asked the parties to research this but the context of that is all direct did toward dr feldman not mrs feldman and then when the district court ultimately determines i'm going to declare a mistrial that happens now is it fair to say that the really the only thing that counsel for m i think there's two answers one of them is interrupted but i think implicit in what he's going to finish that sentence was this is it's a prejudice to dr feldman that cannot be cured by an instruction it's just it's just too bad of a question but he's not saying that the fries by the y doesn't hurt us and court room did that occur and say what a minute while we leave and we still want to trial aspect they were going out the door just as well right and that's why it happens in a snap but the district judge and our reading of the context there is if it happens that the judge says jury please leave better had he done that but he didn't do that november eighteenth is that second hearing when the mistrial was declared thanksgiving it's important to keep my thanksgiving in that in twenty fifteen was a lamp november twenty six twenty fifteen but when the judge declares a mistrial he really the first opportunity to do that and a good authority for that is united states against dixon which is an eighth circuit decision from one nine hundred ninety and that's cited in the commentary to rule twenty six point three and that's what rule twenty six point three was directed to in the first place it's the whole point is to get the district judge to get buy in from all of the defendants and their eight circuits that well it's not really a problem that the guy didn't immediately as the judge declares this match mistrial says say look i want to trial still as my defendant it it's ok because we're going to and that's it's even i mean because aside in the cometary rule twenty six point three is obviously the predated rule twenty six point three but that's the whole point of why we have rule twenty six point review under the normal abuse of discretion standard because the motion in limine order heads that was officially definitive for rule one of three be purposes it made clear what evidence was inadmissible and it was final rather than provisional authority for that tampa bay water against h d r engineering incorporated and then as a sufficiency of the parties largely agree on what the evidence actually was it's just a difference we have different interpretations of cause be against jones and you just need to take the evidence interpret begins jones and tell us what the outcome is thank you miss mcnamara good morning may please the court linda mcnamara for the united states with respect to dr phil mid sentence the issue is whether the jury's verdict supports the imposition of the statutory enhanced sen question to me is whether jury impose a statutorily enhanced sentence under a barrage well this verdict finds that each drugs specified on the verdict form was a but for cause of death and let me explain to you why i say that the court instructed the jury first to consider whether the government had proven beyond a reasonable doubt that death had resulted from the use of the controlled substances charged and that to find the death had resulted it had to find beyond a reasonable doubt that use of the controlled substances the deceit would not have died now that obviously that those instructions don't get us all the way there as to whether those controlled substances were just a contributory cause or the but for cause but we have to also look at the verdict form and the instructions as to the verdict form addressing the form the court told the jury that if it found that dr feldman had illegally distributed controlled substances they would go on to the next question which was we the jury find beyond a reasonable doubt that the death with respect to count two joey maes resulted from the use of one or more of the following substances xico down methadone a passive lamb that is but for his ingestion of the controlled substance singular charge in the indictment he would not have died you would mark yes or no the court then says if you'd answer yes you would go to the series of substantive questions that is if you find beyond a reasonable doubt that the death of joey maes resulted from the use of the following you would mark yes or no adjacent to each of those substances the court thus directed the jury to consider each of the particular substances separately as to the question of whether the victim would have died but for his ingestion of those particular substances and it verdict the jury found that each substance that each victim would not have died but for his ingestion of each of the substances marked on the verdict form but does the evidence remotely support that i mean you know what you'd have to conclude it would be that rare bridge with the special rule where you could die by stab wounds somebody shoot you at the same time a very odd scenario and for that mike any sense the jury would be saying if you just had oxycodone and nothing else he would have died if he had just but the question here is whether the evidence supports their finding that the schedule two drugs it were a but for cause of death but as are necessary their obvious lee confused them because if they're saying that by itself would have done it and we know there's no testimony to that effect we have to necessarily conclude when they're mixing that with oxy code on the jury instructions were not very precise at all about this that they were really what they were doing what the supr court said you can't do they were saying this toxicity multi toxicity this drug cocktails what did the trick that violates the directives of barrage to i don't think we can try to get into the heads of the jury and by and and figure out what they were thinking in finding that each was a but for cause of death that's not what we do with jury verdicts we look at what the verdict is and we look at whether there was evidence to support the pertinent part of the verdict that's the that's what we have to do here the question is does the jury is the verdict with respect to the but for cause of death as the control to the schedule to controlled substance this is that supported by the evidence and we do have evidence to support the finding on the jury verdict that the schedule t substances were at least a but for cause of death and it doesn't have to be the only but for cause of death but it does have to be a but for cause of death and we have evidence to that effect we have with respect joey maes his own witness d adams testified that joey mays had died as a result of intoxication by methadone dr adams said that the methadone had stopped his heart our witness dr wilson likewise said that the amount of methadone in his system would have been enough  and of itself to have killed mays now dr wilson also said that all the drugs methadone oxycodone and el paso lamp had acted synergistically to cause mazes death but just because there was a combination of drugs that does that he thought it odd sokoto nuff was a lie i don't think that's inconsistent at all whenever a person takes more than one drug the drugs will act synergistically but that doesn't mean that the defendant gets a pass just because the central for d code to the other part of the cocktail that would have been enough there's testimony to that effect with joey maes it's methadone but yes and that's a schedule two joke drug with respect to joining us with the other two it's both  nothing and can correct me if i'm wrong but nothing in the instructions as that each drug that has to be about four cause that's correct and obviously we could have had something that was clear it in the book with the verdict form and with the jury instructions but but we do have a verdict form here that finds that but for each of these drugs the victims would not have died and we have evidence with respect to this idea what we know as the we don't have evidence that but for that for a schedule force we don't have any you don't have that that's true we don't but like i said i mean we can't get into the the jury's head and try to figure out what were they thinking we have to take the verdict form as we find it and the fact that we don't have sufficient evidence as to the schedule for is being a but for cause of death that doesn't affect the validity of the verdict as to the schedule to being a but for cause of death and we have evidence on each of our defendants to support that i mean so so with and the defense verdict form would we would have had this problem the government didn't want to use the defense well ultimately they agreed to use our form i mean that and to the fact to the extent that there was ambiguity in the verdict once the verdict was returned with all three or all two of the drugs checked they they could have raised a question before the jury jury was discharged to say this doesn't this doesn't sufficiently establish that the schedule to use without the schedule for was a but for cause of death we have to take this verdict form as we find it they never alleged that this verdict form resulted in some type of ambiguous verdict it's really it was really your responsibility you created a verdict form that was ballon to get us where we were but judge we have a verdict guide the jury any light person is not going to understand anything we're talking about the instructions don't write it down until it's very important members of the jury that you determine whether a certain kind of drug causes by itself the judge doesn't do any of that i would think a jury might infer drug cocktails good enough well it's a good judgment that that the district court did instruct the jury that they had to find that is but for his ingestion of the controlled substance charge in the indictment he would not have died you know to each of the three would mar yes or no dances yes you would mark yes or no they have to look at the verdict form and say but for oxy code on he would not have died but for methadone he would not have died and he would not have died and that's what the jury did and that's the verdict that we have and so long as we have evidence to support that as to the schedule to use we have a supposed sufficient verdict to support this the sentence he has a record disclose why included on the verdict form i suspect the thinking was that if all that was checked was the schedule for then we wouldn't have you know the statutory enhancement but and if all that were checked with the school choose obviously we wouldn't have this issue it's amazing to me this is a pretty big deal it's going to really increase this and that you don't have a lot of these prosecutions at laxity of the prosecutor this is sloppiness at the time this was a relatively new issue the prosecutor was trying to understand arise and what it required and what it entailed as all the parties were and in flushing this out with a district court this was the verdict form that everyone thought would be sufficient to resolve this question and i think ultimately it is now what would have been better if the schedule force had been on their course it would have been better but having them there does not defeat the verdicts finding that but for the schedule to say these victims would not have died and we as i said i mean we have evidence contributory condition of die as a pam intoxication he said in other words he's been poisoned by the oxy co down with the dye as a camp speeding up his death from that now barraged says the but for causation exists where a particular controlled substance combines with other factors to result in death so long as the other factors would not have resulted in death so in barrage the witness cannot say with certainty that the victim would have died but for his ingestion the heroin that the defendant had distributed but here we have an expert witness sometimes both expert witnesses agreeing that the amount of the schedule two drugs in the victim systems would have killed him no matter what and no witness testified that the schedule for substance would have killed the victim in and of itself so meaning that again the verdict was incorrect as to that but he doesn't get a the he doesn't get a pass just because the schedule for substance sped up the death of these of these victims and we have a verdict finding that there is that there is but for causation respect to these schedule two drugs is it i was going t docket quickly yesterday trying to read different things is the colloquy before the instructions in the verdict form is there transcribed is yes yes it is yes i did find that in the rest and i would direct you particularly to volume three seventy three to sixty two which is where the court is explaining the verdict form to the jury and i really mean there's a colloquy also where the verdict form instructions were discussed proposed yes yes also in the record yes yes that is in the record and that's that's either in dr three seventy three or the or the by and before that but yes that that is and you know as i said there was no objection this was the verdict form that everyone agreed to and and you know one found fault with once the verdict was returned and the at the bottom line here is i think if you read through the jury instructions and you read through the instructions that respect the verdict form you will see that this verdict fin these schedule two controlled substances these victims would not have died and that verdict supports the sentence imposed i can go through the evidence with respect to that but for causation with respect to the other witnesses if you like probably do that in on the question of whether a mistrial was necessitated there right after dr feldman had had objected had moved to the mistrial his counsel said judge and it's my position dr feldman said judge it's my position that a curious instruction is not going to cure the prejudice and then mrs feldman's counsel said judge and this is spelman has the same position as this is a conspiracy case with regard to that i agree i don't believe a curious instruction is going to and then was cut off and then the court said i don't see how this could prejudice your client now she was referring to this being a conspiracy obviously implying that because it's peter see they're all bound up together so there's no way that a curative instruction could cure the problem and then of course once the court came in and ultimately granted the mistrial as you pointed out she didn't say way that wasn't as to me yet i want to continue so she had ample opportunity and i obviously didn't didn't object with respect to that now with respect to this respect to what he's calling a doctorate issue and whether the issue is preserved even if it was preserved i just wanted to point out that the opinion that he's complaining about now came out from the witness it wasn't a question that we asked if the court finds that what the expert said was an opinion as to all thirty two hundred patient files which i don't think you can possibly find that with respect to what the expert witness said it was incumbent upon them at that point to move to strike move from this trial object or something of that nature because this was if this had been ruled upon earlier and the witness just came out with it in any event it was a coming out about the pond then to bring that to the attention of the court and the court and they did not do that at that time and respect to the sufficiency of the evidence i think we can stand on the argument in our brief thank you thank you if i could just briefly review some of the medical examiner testimony with with the court this is from what she her argument is i think everybody's going to agree this was not a great verdict form of what her argument is is you have they they checked all they have to do is check the methadone or oxycodone once they check it way down here however and many other check marks there were you're done and how do you respond to that argument how do you ignore the fact that they check to three they're asked a very in the verdict form we the jury for count to find beyond a reasonable doubt that the death of j m resulting from the use of the following and they check all three so you have to go through some mental gymnastics to say well they really meant any of them individually which is the court has pointed out is not possible given the testimony regarding how proselyte but it's also not at all consistent with the certified causes of death that the medical examiners all testified to and even as to joey maes when dr wilson opines at one point about well i this but i think or i believe so when asked whether or not there was enough methadone to cause the death he later at two fifteen again asked by the government to expound upon his testimony he says well the methadone alone i think is enough to kill him adding on the out proselyte as well as the additional opiate just goes much just raises my level of suspicion even higher and it's just you know to me a toxic cocktail of drugs plural that in my mind had no what was it was a toxic combination of drugs which led to the death you're saying there's not any one sliver of testimony there we  take in a lot less time in the government that would say that his testimony would be understood by the jury to mean that oxycodone alond it or methadone which i promise i'm not sure i understand what a sliver of testimony is but even when they went off the reservation a little bit to give a personal opinion other than the certified cause of death they always circled back because of their professionalism to the multiple toxicity and that's just you judge antin you asked what this standard of review is about the double jeopardy issue the initial declaration of a mistrial interviewed for abuse of discretion but the denial of the motion to dismiss the indictment on double jeopardy grounds is review novo both parties in their brief said the double jeopardy issue is reviewed to nova but i mean that's that's the standard we said that in our brief page thirty five in the government said that in their brief at page twenty six there's this question about the opportunity like we said before the rule certainly says opportunity but our position is it all depends on the context of what happened at the hearing and aren't a rotation of the context is the whole question structured to dr feldman rather than mrs fel n and then on the docket issue this all turns on interpretation of the tampa bay against tampa bay water against h d r engineering incorporated case our position is that the motion limiting order was sufficiently