morning your honour's they please the court robert feature for mr lester sather if i may reserve four minutes for rebuttal the government need not present proof that this proves any reasonable hypothesis hypothesis of innocence but it must present evidence that offer something more than a reasonable hypothesis of guilt the to honor the jackson standard and effect to the presumption of innocence and society's expectation if there's going to be some due process associated with with criminal processes that end in prison i think we need to give every word the jackson standard affect whether based on the trial record evidence or rational the jury could find guilt beyond a reasonable doubt where is that line that jackson line and how is that differentiated from the no evidence standard that preceded it it's murky and i submit to you that in this case as mr sadler the government fell down for two reasons because of that the conviction for mr savva is based upon permissible speculation that they didn't act as if he were a member of the conspiracy and that's not what the statute requires i mean that is it i think i think is it required that they act no but could a reasonable jury find that when all the members of coconspirators of a conspiracy act as if a certain person is not a number i don't think a rational jury could find under those circumstances that that person is a member of the conspiracy and i think that's that's the point you know one of the prosecutors in my old office used to give a great speech about this i used to say you know if you could forgive me i was in the eastern district tennessee and this is back when we had former you said if you could listen to the talk radio shows and find out what's going on with the halls or you can have a microphone in the huddle and when former talks which would you rather have if you wanted to know what's really going on and that's this this situation we have here you know we can pull this back twenty five thousand feet and anybody could be a member of this conspiracy and i think that's what government trying to do here but if you actually look in the huddle and listen to what the captains are telling the troops nobody's communicating with mr savva you know when they run into trouble with the law exclusion for saying lester just had stuff related to the he was done stuff of the clinic oh sure i'm not suggesting by any means that he did not all the legitimate side of the clinic paying the bills and so forth i don't know there's any evidence that he paid the bills and i think there's evidence that he was on accounts from which bills were paid but i don't know if there's any evidence that mr sather was paying the bills and i invite the court to look through the p s r and the nature and  characteristics of mr savva and conclude for yourself whether you think that mr starr there is a person who would be a detail oriented person i don't think that if you look through his personal characteristics that that's something i people complained and it's not clear whether they complained to mr savva or not but even if they did there's no record evidence that it contains the level of detail that the witnesses came in and testified to about what they were experiencing with their businesses in he would see that there are people in the parking lot i don't know that he would have been out in the parking lot inspecting what's going on and there's no record evidence that he did and the government's wonderful evidence are in the same business again same time likely that he would assume that everything was on the up and up i understand that assumption and it's assumption that in my life experience that i probably would want to make too but i think if we look at that route military make that assumption i don't know i don't think that under these circumstances they can and i'll give you a whole list of reasons why for example you know nancy lied to her sister to get her sister when when mr sadler mrs souter according to government's evidence was splitting the proceeds of the drug diversion with david michael journey there's no evidence that mr southard was aware of that at all you know not to see if he exercises willful blindness he can't he can't really rely on that to extricate himself from this and i know you say he's not in there right it that's a great point but i think if you actually look at the structure the clinic answers the questions the people who are involved in the conspiracy were involved in the nicholas fear of the clinic and there's no evidence that lester souter was involved in the medical of the clinic in fact the only other employee who was there other than david michael jordan who admitted that he was diverting pills and splitting the proceeds with the sound or was the it was the defendant was acquitted in this case codefendant there were three defendants in this case one of which was convicted the receptionist was not involved in the medical spear well i'm not talking about the medical well maybe i am i'm talking about just the operation of the business well you know if you talk about the operation the business the receptionist was the one who would actually take the money from these purported patients which is something the government says about lester's now that at the end the day he took the money that the receptionists got ok and counted it you know and i think i think this is another important point when there's a lot of talk about how you have a case where is such a small business and make for you to be right because lester owned this thing right you have to have a case where the owner gets off there's not sufficient evidence but the other people are fine as seems remarkable to me particularly me taking a drug promises for the owner to get off the lease lots of hands that something's amiss prior investigations and the owner gets off on the people but technically below the owner is wild to me i think that this is a little bit distinction because there's more than one owner here and there's one owner who's in the medical  the operation is a very small it was a medicare fraud in fact the entire business was a fraud the owner got off on the underlings there was sufficient evidence at the court of appeals the well in that case there was there are thirty two defendants in that case there is in there was a third the guy was in the conspiracy who had become a convicted earlier of broader medicare fraud scheme and the lawyers in this area get up in closing i exclaim that he was just the owner image seems really strange to me i think i think if you look at the trial record evidence i mean i understand that he is the quote unquote owner but he doesn't act as an owner of a scarecrow's no scare quotes needed he's the owner that's the way the law treats this right but that's not what's required for either these convictions i mean i think that he's the owner of a business locked it it is it's a practical point but this was a business that was operating as a facade you know with the government's own expert nurse came in and she testified to the records appeared in order when he talked to  insufficient it's about a lot of support the convictions for maintaining a program called premises for reasons very similar to a future talking about no proof that the senator was running the clinic the place under the meeting the statute for the purpose of distributing illegal drugs and then with regard to wire fraud because there's no proof that she or anyone else deprived any party of any money or property deprivation of property point which interests me a little that and you've done much i believe so you're ok with what happened if you remember do you remember what how you were the deal there was it was a medical supplier a little distributor who was buying what was the government's theory of deprivation in that case because we're serious deprivation in that case which the court one month of upholding was that the medical supplier had two different prices that it charged for pills depending on if you were going to resell them to a for profit hospital or a nonprofit hospital defendant had represented that he was selling to a nonprofit and got a lower price when in fact he was selling for a higher price on the theory was that there deprivation was that was the difference with the delta between the higher price that would have gotten if they'd known what he was really doing with the pills and the lower price that we might imagine that places that that wouldn't be true here correct of that and yet you have a how about any cases that kind of show that when you pay full price no matter what the other you like al these are the other bad things happening it's not a deprivation of property whatever else it is haven't been able to find anything directly on that point i think because it strikes me as maybe so it's really kind of brings us back to these two convictions really resting on generalizations of all the wrongdoing that's going on in the clinic and not on proof of the specific elements of these then the second set of issues or the ever with sentencing where it's saddler sentence is based more on the criminal acts of others david michael cherny in particular on district court's recent experience of other pain clinic cases very different facts in the one that was actually before it on acts that the jury had acquitted saddler you're allowed to use drug quantities of other where other people are participating if it's a conspiracy or some joint enterprise right correct or are the the the point here was that there were really kind of multiple conspiracy going on with inside the building and the building of ohio medical and the  sadler was involved in one of those in the conspiracy to order some of these pills from directly from drug suppliers and sell them to mr charity there's the most direct evidence on that one is it's a couple of isolated transactions where she orders something like forty thousand units hydrocodone sells it to mr charity for twenty thousand dollars that's the same transaction that's at the root of the money laundering count that we're not contesting here either  but then you have the other conspiracies you have mr journeys if mr journeys schemes to get pills in other ways that don't involve the saddler he was buying prescriptions directly from the from dr banks no knew anything about that he was asked a question i am sorry if i'm getting this wrong but i think i've got it basically right just saying for the sake of argument you're right on the wire fraud but sadly wrong in everything else does that do to your client i mean there are like three concurrent sentences correct or would it affect the fact that there are three concurrent sentences is that just the end of the story that just means well it would still be important obviously not have that conviction if that were true but in terms of sentencing it would not require e sensing or it would require sentencing as a practical matter i mean it wouldn't reduce the effective sentence so there's really not much to do if you just went with a case that a conviction  conviction which would be important for us from a structural perspective we need people to only be convicted of the things that they actually did and then on hypothetical in future there seems to be movement on changing drug sentences and sometimes retroactively there doesn't seem to be the same kind of pressure when it comes to when it comes to wire fraud sentences so if this if that conviction stays in place and anything changes on the on the drug sentencing law could wind up with a situation where the wire for one sentence is now you know is controlling it is the it is the reason why she's stuck in prison so i did step go back and look at all the sentencing calculations but it's just there's just no she was actually in the scope of wrongdoing that she was actually involved in which if that's really just the ordering of pills from the drug suppliers which is the only the only part of the the only court of conspiracy i would really characterize as a separate conspiracy that she was involved in from the other stuff from the phantom patient stuff where mr journey was fabricating patient charts out of doesn't appear that the who's i mean i don't know if this is more harmful to your client or mr sad there but you know one of the worse facts in this case at least to me was this dr brown the banks work there and just was over defense objections and you know muddy the waters about who exactly was doing what was wrong with what illegal conduct what bad conduct in the clinic and pretty successful in just getting deprive the drug company of any property or money what we would point is a full price right because they paid what we point to is as by analogy if you look at a mortgage fraud case for example somebody lies to a bank in order to obtain analogy in one respect but what they'd be prosecuted for there would be lying on a loan application right or could be bank fraud i mean it could be a fraud case not just a false statement case but i mean i guess what i'm i'm trying to figure out with this anal someone of property i mean if so take take this is a i think it's a good example so you you've lied on your application so that's a false statement and you should get prosecuted for that that probably some other bad things you've done but if in the course of the loan you you follow the terms in other words in terms of the economics of it they say pay fifteen hundred dollars a month for thirty years you pay fifteen dollars a month for thirty years you pay the whole thing off i don't i don't get how you have a deprivation of property problem there you would have false statements perjury perjury you have all these other things like and that that's i think what's going on well my first instinct is to think that's what's going on here yes they were doing lots of other bad things and indeed they got convicted for a lot of other bad things i just don't see the word deprivation of property climbing to this well your honor i think first kind of sticking with that analogy that we're just asking i think there are cases but let me point to the dangerous case that we did cite and it was a little bit different because if it ends up being looking like more of an embezzlement case but it was an individual who was using company money to further other transactions within securities and the argument the end was i had no intent because as things went well he was using company money to cover margin calls he said you know i was paying the money back and i was intending to convert the money back so it's a little bit similar but the argument in there was what you were doing was you were still depriving them of the ability to control their own risk and that's really what you're doing in these types of cases and i don't know i guess i'm just struggling with why i don't mind and i'm sure i understand why case just as to those words if you didn't surprise i don't care if your intent was good or bad i mean mother teresa or jim inhofe leif you either pay to either the economics of it with what you said you do or they want well i would say your honor is i think there's a lot of cases where that might this situation simply wouldn't come up i think what's coming up in this particular case is if you think about the product we're dealing with they're not buying widgets they're buying a product a consumer cannot buy you know this is not something that somebody can walk in and get you know just order it a relationship with a drug distributor you need to follow protocol and you need to have a d a rice at your registration the reason they're called controlled substances is there is a very rigid regulatory scheme for the distributors so that they know who they're selling to and on the buying and for them to set up a complete action and even after brazen scheme is just buying heroin or whatever just to violating the law in the course of that you're not going to worry about deprivation to property you worry about a lot of other things but you're not going to worry about deprivations of property but there are eleven went to getting what they say they're on site getting let's say it says it wanted on the other side getting what it asked for in return this isn't something where drug distributor would would sell to anybody who comes in office treat the drug good distributor has the ability and should be scrutinizing who it sells to in here defraud from the standpoint of it's you know it's obviously the language in thirteen forty three also talked about to obtain through false pretenses and things of that nature it's easy to throw it under the lamp of the scheme to defraud because that's a but we're still talking about lies to obtain something that you're not entitled to obtain ok the fact that they say that they ended up sending in the check later shouldn't shouldn't change that i want to i want to address counsel's argument that the record is devoid of evidence which shows that mr sattler knowingly joined in this conspiracy or that anybody treated him as a member of th pills directly from the distributor and this whole scheme to have memory and that so forth point the court just for example to exhibit twenty eight page fifty two fifty four where lester sadler is writing a check his signature is on the check paying for these pills there's no reason for this clinic to have these pills ok so everything about the pills was fraudulent from how they obtained them to what they did with him so really anybody connected to that who understands what's going on let me just stop you there is to make sure grasping that there's no reason the clinic should have tills because all the clinic has the right to do is have a doctor who can give out prescriptions is that what a doctor with a deregistration can order pills for certain uses with the patients and keep the l's at the clinic but the understood view did evidence was that patients never got pills so that's why i'm saying the pills came to the clinic and then were used otherwise they were given out they were sold on the street so forth the patients meaning the customers who came in each day didn't get pills they got scripts so that's that's why i'm saying it was legitimate in whole in terms of that the ordering of pills there were numerous schemes that were going on i agree there were multiple conspiracies within there one was how they handled the patients off the street in terms of giving out scripts for no legitimate medical purpose but then secondarily when we have a lot of the prescription that was restriction yes i'm sorry i've adopted some of the course my language but the so there were multiple conspiracies with respect to the ordering of the actual pills which a lot of these clinics didn't engage in this conflict but that's what that was the problem with this particular clinic in the ordering of the pills they were diverted almost immediately they were kept there actually ordered under dr banks number she was involved in the ordering and they were kept under lock and key in a safe that lester sadler had control of made to have a control of the doctor didn't have access to the doctor's only connection to these pills was when she was sick and they would actually give her pills to help keep her under the influence connection that lester sat with her writing the checks is just on the accounts there's a check and it's actually one for the pills there's also a comment that he didn't know that nancy was doing this whole false thing about murray all of the records the vast majority the record that we had on this marie scam and about these pill orders were found at the saddler house and there was also a black bag found on the sea adler's dead and that witnesses testified that the bag that lester sadler would is not just i think at one point your honor you talked about was he just involved in the legitimate side of the clinic there was no legitimate scientific clinic he was involved in setting the quota perhaps the patients had to be seen he said that quota he collected the money and the and the documentation to make sure that they were seeing enough patients the biggest part of the scam with respect to the patients off the street you know we did have evidence about the neighbors complaining and a the atmosphere of color but there was also a very serious part of our case about the what we called the de sheets these were sheets that were filled out for every patient to document that they came in and the idea was for it to look like they had a real medical exam but it's just the volume that they were doing you know when they were forty was the middle they did seventy eighty piece patients a day sometimes to do that kind of volume in the period of time they had to really spin people through and so they wrote the forms out in advance and those were written out at the saddler house and then mr sadler transport them into the office and they needed those forms to justify what amount of they were ordering i think it was to create some documentation of the patient visit the problem was one of the problems was they started filling these out in advance ok they were filling i'm trying to trying to figure out what just give me a minute by fifty to seventy people a day every day and that's the cash business that they operated the cash only yes ninety nine percent i would i would say  insisting on that or i'm trying to figure out the point of the cash what is that is that i think it was unsound incriminating and maybe it is i'm just not sure i understand but i think it's it was somewhat the nature of the business that the number of these folks didn't have insurance or the insurance might not cover but i think to a large extent they did not meaning the clinic did not want to deal with the what goes along with submitting health insurance claims this was easier and being you have to obviously register as a provider you have to fill out a lot of documentation to be a provider with a health insurance company this was much simpler the reason i say not everybody your honor was there were a couple people who were more or less friends of sadler's who would come in with their own insurance plan but them the vast  majority were paying cash the importance of the day she so was this is where they filled out what the person's complaint was this is where he had the bundles and they were making up the vitals they would make it up days in advance because when we did when the agents did the search and search the sadler's house they found a week's worth of a sheet created in advance which were highly incriminating and i think expose the illegitimacy of the practice of the clinic as a whole and so that's why it was also important the testimony later in the case when conny reich who lived with the sadler's lived at the house and also worked with the clinic testified about when in a hurry lester sadler and others were out there burning they shoot at the saddler house so that's not a lot of this together so missed it going back over to your original question just down the street that lee was involved both on the pill ordering side of it which was illegitimate in its own way he was also involved in just running the clinic and the illegitimate prescriptions that were given out to the patients who came in on that day to day basis lester was really the individual who oversaw the party operation i think they're correct there were about you would see about six people in there on a given day you know somebody at the front desk three assessors who had to kind of finish the paperwork and get them into just the dr banks and so forth but it was it was done in very much a sort of a factory form i do want to go back to a couple points i believe that said you asked about what would the impact be of the wire fraud i do want to get back to that part of it there were four consecutive sentences for the same amount given to miss sadler so there would be no need for re sentencing and additionally if you look p s r the guideline calculation they treated the wire fraud is completely grouped and subsumed within the drug count and so there wasn't even a separate something guideline analysis done under the wire fraud which calculated loss and things like that is group within the drug sentencing guidelines or to the one point one and then they went from there  so i would support the wire fraud count first of all but i did want to address the court's question about what would the impact be should you not find in our favor but i think it was important for us to to perhaps emphasize the nature of this product here  that it's important for the distributors to control their own risk and so for someone to in this case they are creating they lied on the front end they lied as they ordered but by creating a fake person but also not even having the doctor involved and then they actually lied on the back and there was testimony about certain letters that were given to the distributors because some of the distributor g i d came back and said he said what do you using these for which is a they were concerned about the volume and there was a false letter that was created by nancy sadler and submitted that's the thing that strikes me as really undermining this the drug distributors right to deal with honest people and they would have the information to know that this little clinic is blowing through all the charts i feel like well that just doesn't make any sense to me there is a difference there let me make sure the court's not confusing two things the number of patients coming in on a daily basis is not available to mean what right there is thing where they thinking they have the information over there or was there so many distributors involved each wouldn't know what the other was doing is that you can there's there are two distributors involved not knowing what the other is doing what and then the second important point in this was in the all scripts testimony they did a form you know to open up the clinics account and they represent how many doctors are there how often are you open and they lied on it nan i lied on it she said we've got two doctors were open five days a week to distort the value or at least try to distort that for that particular distributor and that was part of the testimony and they said this does in i think one of the defense attorneys tried to say w it doesn't matter to you and she said no it doesn't matter this is a concern for us you know if you say there are two doctors and there's only one the same thing about how many days we're open because as from a regulatory concern and this is what she said that is a concern for us because we're supposed to feel anything if they just repeaters want to sit with them there would be causes of action under state law for deceptions fraud lies i just don't think deprivation of property is a phrase that works with what happened well if we're talking about obtaining property by false pretenses or any of that other language in the statute we're still talking about taking something you're not otherwise able to get without that why are they in a position the distributor's their the regular i assume federal regulations as controlled substances they fall under that sudden somebody come in and check their records periodic way and say you are supplying too much to this little clinic  here it's not part of the record in this particular case but that that can happen not in the risk that they're very because they have to report you know the way the government knows you know who's ordering from whom is the reporting systems that are done and by my mishandling i did want to make sure it was it wasn't confused in that this was not acquitted conduct that was used in fact we intentionally did not use the quantities that were alleged in the indictment and there were and i just want to make sure there wasn't any confusion because it was not acquitted conduct that was used in the court used members of the saddler family there was testimony in the record that there were fake files created for those members of the family and by the way th dovetails into the question about lester sandler as well with respect to these phantom patients that are created these phantom files there was mrs saddler's mother who lived at the house she had a fake brother in laws that the sisters in law's these good friends and buddies if the government had that evidence it would be in the record and it's not there and the government continues to go down this path where they say hey look you signed some checks it doesn't say that they were pierces name that was used to pay pills but pay pay pay a supplier not necessary for pills it doesn't say pills on there but it was a drug distributor it was these were just jug distributors they were also suppl the evidence he signed checks that we're paying for pills i don't i'm asking for inferences not technically what is on the check i don't frances i don't think a rational jury could get there if you look at exhibit eighty one and record i seventeen page sixteen eighteen there's evidence that nancy souter was signing lester's there's name to various documents there's there's evidence you know if and i understand your point a script lots of people testified about who was involved in doing the day shoots mr souter was never included in that group even if that was a wrong thing to do i mean i concede maybe it's not a best practice but once  incriminating evidence found in the black bag that he carried back and forth sure what's the theory somehow to put that in there or is it a permissible that that shows he was involved in this it couldn't a jury for that a jury could guess that he opened up the back and i went through it read every document and then figured out what was going on but i think that stretches jackson too far about the jury inferring he created the sheets of self there's no record evidence for that repeatedly the government went through witnesses and asked who was involved in creating the tape chutes and every witness consistently did not identify lester's others being one of those people about the inferences about quotas his setting quotas there's no record evidence that the the clinic ever had a problem meeting forty patients but beyond that when lester souter was interviewing dr duncan he told dr duncan my expectations that you're going to review you see these forty patien the only evidence about forty being a lot comes from mr dr duncan testifying at trial there's no evidence that mr sadler appreciated at the time that forty patients was too much at the time and that would be great evidence if it was in there and if the government had it i'm sure it would be in the record if there was any evidence that david michael journey had a conversation with lester stadler about any of his jug diversions i guess that would be in the record he was cooperating he got virtually no time it's not in the record he was his brother in law knew him for his to lester sather and i understand that he was a nominal owner and there's a guttural instinct to try to hold him accountable but i would recommend to you and urge you that a criminal prosecution is not the right venue for doing that it's too here i would imagine but it could affect a court analysis of the sensing factors under thirty five fifty three if you know if you lose that count completely then the picture changes somewhat into a could change the kind of unconvicted conduct the picture we get from the jury verdict is that the saddler was convicted of the the conspiracy to order all these pills from the drug suppliers and sell them to mr journey not so much the the phantom patient stuff or the buy prescriptions directly from dr banks or any of that then on the back to back to the this fits under the medical practices section of the case that again there wasn't a doctor on trial for the conduct only it was illegitimate with regard to filling out sheets in advance  prescribing medication to folks who had lied to the doctor and who may not have needed medication all of that would have been proper in a case against the doctor but i'm not sure that that has much place in the in the