the lower court to consider the question whether dr barriers testimony was material having for court having found the judge jackson erred in excluding it pursuant to privilege there was also a jury instruction issue that you said head basically while there could have been a more helpful instruction to the defense it was not an abuse of discretion and then finally there are a whole series of other issues that we had raised before that basically you can comment on it all and  so we have gone ahead and and reasserted those but i i mean frankly i thought i was prepared to talk mainly about the first issue unless of course he wants us to get into the other issues i will note that on the other issues both the jury instructions issue and the that came out two days after we filed our reply brief and i'll get that citation to the core supplemental proceeding some sort so we're asking that the court join the other considered this issue considered dr barriers testimony in particular courts in california in kansas in nevada and rule number one that dr barriers testimony is material and is not merely cumulative and number two we have it allows us to present the and so in fact with we have the benefit at this point of the designation of dr berry or as an expert in that case to this so i mean it's it's a case i'm involved in also representing mr ritchie out there as well the cross examination didn't take issue with his science there only took issue with him as being a hired gun as getting five hundred dollars an hour and so on and that was effectively there the cross examination also recall i was similarly cross where and there actually there are two things that go on with dr with dr barrier one is simply to to show that there is a professional disagreement but the second more importantly in the what makes him so compelling for us is that his disagreement was asserted in two thousand and twelve his disagreement with asserted at this around the same time that these defendants were trying to decide whether it was ok for them to sell the substance and it's not at that point his opinion is not being viewed through the lens of two thousand and seventeen or two thousand and nineteen in two thousand and twelve there was substantial professional disagreement of and even whatever we may say the evidence  is pinions maybe in two thousand and seventeen in two thousand and twelve there was disagreement professionally as and even within the da ranks so that's what makes dr barrier compelling not merely that he is a not the hired gun but that he adds that other component of being able to establish quite quite credibly i think that there was a disagreement professionally and therefore reflecting on the question so been two is is it is otherwise admissible and not and three had not cumulative and four as would reasonably been likely to lead to a different result judge jackson and i want to touch on one point briefly that the  government has noted as we have noted as well that the decision to admit evidence or not is in this case typically is seen as that it is simply an abuse of discretion test but it is always an abuse of discretion to get the facts wrong it is always an abuse of discretion to get the law wrong in this case judge jackson's opinion was based star starting with a mis characterization of why we even want to dr barry are saying that we wanted him just because he would important judge jackson goes on to set up this straw man and then to shoot it down by saying well dr barrier isn't actually an expert on the process but that wasn't what we wanted him for and finally judge jackson's only response to  mere fact that something has a cumulative effect if he was saying exactly the same thing that dr dudley was saying exactly the same thing dr was saying that might be needlessly cumulative but he was adding an entirely know the judge jackson said well you can't you can't give any credence to that kind of kind of thing and has yet to consider in the context of the entire record citing valens well i'll as we noted in our reply brief that that a misplaced reliance because their reliance on violence are over now doesn't say we don't consider what the defense strategy might have been in fact that would be a ridiculous argument to make in the context of in those other cases so we believe that that's a situation where i mean another again three specific instances there where we know the judge jackson had committed error and therefore because he had factual error and therefore  opinion based on those factual errors is not worthy of the protection of the abuse of discretion doctrine the government has gone on to add other arguments noting that while the u n and  memetic means it's a controlled substance it's not a controlled substance out walking the controlled substance analogue by definition is not a controlled substance so the government's argument if if born now would provide a complete defense to its own for i mean one fortunately for us we don't actually get the benefit of that because acts are alive and there was a can of a magic within the meaning of the statute so the government has both raised a red herring it turns out to be a completely inappropriate red herring turned and it's just not a not a real response so there are a lot of other things that i can comment on as far as the specific comments of the government about the answer is you all of the want to talk to softening about it in the government got it wrong and judge jackson mischaracterizes things and so i think it's important at some point that we recognize that it is that the d never determined anything one panel of the da expressed an opinion that he is at most the opinion of an expert witness but it is not the da it is not the force of law it is not a regulation statute so i'm happy to answer any questions a court may have or all reserve the rest of my time or how about talk about state of mind sure so the state of mind issue again are the jury instruction on state of mind of course is what we wound up taking up to the supreme court mcfadden mcfadden came back with a decision or the court came back with a decision that most folks are a little bit confused with and i instances in our briefs where courts have said we're trying to figure out what mcfadden means number one we wish that there were better guidance that we could give to juries that's why we had raised the issue we raised as instructions as far as the witnesses go they fall into two categories one was witnesses who were willing to come and testify one of those being closely use not happy about testifying but would come in would testify and has testified testified in the jason way trial for example and he's cleared to testify in the nevada trial so this is another instance where we're going to get that evidence in we're even going to get it in as to these particular defendants just not in virginia that would get in exactly the same up originally by making the by by asserting this all as a potential defense of entrapment by a softball but as the court noted in the fattah again it goes to those we asserted them before trial as negating mens rea this is not something we just conjured up at the appeal there are courts including the nevada core and the district court that has ruled on the on these pacific the substances who first not mr miller it was not self we have never given such advice and would not give such advice so what about ms right you know what he testified to seems like he proffer that in addition to move can talk about whether the advice that he gave on august sixth was was advice that would consider defense but once he got into the case remember this is a time in in late two thousand and twelve and early two thousand and thirteen when the legality bax all x l are a lot and particularly in florida was a very hot topic there was a big decision a couple of big court cases going on down there mr mcgee was involved with them and he was informing them of the status of the chemical opinions and so on and keeping them informed and in fact dealing with the lawyers out in nevada with the u s attorney's office out in nevada to yad to r write right not not for the truth of what he was saying but simply that the advice that he had given to them and we can we can produce only with all the district court has not given him that it sounds like  attorney's office in nevada saying it is our client's position bad blah blah blah you know that this is not an illegal substance that in and talk referencing thawed cosi and reference you know that that is part of helping to  fill out the overall picture of why these folks not only were selling the drugs in august of two thousand and twelve but why they continued throughout it may only be a sensitive issue at some point maybe th the court would decide that it was a relevant prodded that it doesn't constitute a defense as of august eighth but at some point along the way that they get the fifth they get the idea that it is in fact a valid defen court as laid out in the remained on materiality was decided by judge jackson really along the lines of cumulative and so i think the question before the court is is a couple of things  look at mr dr barry or is he cumulative that's that's why we're here think judge boyd raises the issue of well you can't cross examine him as a hired gun and so that makes him in the words of the defense unique we would suggest to the court that he is not unique the issue on cumulative the materiality is not defined by the person it is to find the evidence or testimony that they will present to the court buttressed doctors throat and only and that is the in judge jackson's words the essence of cumulative yes i think just jackson and art i would disagree with the defense characterization characterization the judge jackson set up a straw man in the knocked it down by saying that dr barry would talk about the processes that da the first part of his opinion judge jackson's talks about the similarity in testimony that would be offered by dr barrier but they didn't goes on to say that yes if the defense even if they were calling him for a different purpose say the administrative process by which this decision was rideout he would not be the right witness to testify and they're for i would not mean material on that ground either but i think just jackson's opinion clearly addresses the issue of dr barriers that year mr cosey likewise did not appear on the scene until july of two thousand and twelve at which point the defendants have been manufacturing and selling nationwide these products for six months i mean then we look at cal two of the determine whether or not you can rely on either counsel or a government agent to go forward we litigated that before the first trial we litigated that again before the second trial and the court made findings which we believe are really dispositive of the issue that the defendants were fully engaged for at least six months and all of these processes before either mr mcgee or special agent cosey had any contact with things play into the dynamic i believe of of a district court the management of a trial as as judge jackson took on the issue of dr baer i think it is worth noting that he had been from soup to nuts through this trial once he had it wasn't just speculation about what would come out he knew exactly how things were going to play out in fact at the first trial which resulted in a hung jury only d testified on these issues of substantial similarity so the second trial which resulted in a conviction there were two defense experts in the michael in the jason way case in california the defense makes much about here's the trial  want to have well in the jason way case you have dr dudley who was the defense expert here you had coetzee you had dr barrier and you had mr ritchie all testifying the way the defense would like him to testify here comes down to here is someone the defense will use to say he's from d n a and they will quote him with the emperor of he's a government witness he must be completely but you are because i would suggest to the court that when you're dealing with witnesses right obviously witnesses come in in numerable shapes and sizes i don't mean that physically but in the context of the ability to present their evidence and to create a rule which says that the defense is entitle to a witness who would say the same thing only in a better package opens up a door for revisiting that that in two thousand and thirteen when his information was provided in the fajita case to the defense this court ruled that that was a waiver of the privilege under the  the administrative decision making process and i understand that i'm not revisiting that but but i would invite the courts of attention to the city of virginia beach versus department of commerce we have mentioned previously at nine ninety this type of witness because that goes on to say that the deliberative process covers all recommendations the documents and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency as well as document so it inaccurately were prematurely disclose the views of the agency i think it's entirely appropriate for judge jackson in weighing under four of three how this witness would be perceived to take into account those very strong policy considerations so really you have da which must speak as an agency with one voice and one year being asked by the defense to do is to take an da honestly he was one person a da who held a different opinion in the agency and to elevate that opinion to materiality in effect and  so the question outside of the deliberative process is does indeed to centaur within an agency become immediately material is a worthy consideration for judge jackson to make as he's weighing under four of three the confusion that they had a problem the first jury trial as well which resulted in a hung jury so so we acknowledge and we don't we don't hide from the fact that the issue in this case is substantial similarity but we suggest a court that th the issue of dr berry or i mean the the really the one issue the defense wants to put forward is he was from d a and want to send it to me tell us materiality and six of them and contacts comes from brady yes so washington they be allowed to pick and choose which which says they one i think there'd at the time we were dealing obviously with the issue of whether or not under two e the subpoena was was appropriate and so the the focus of the court at the time was with slightly different judge floyd than what you are phrasing the question as now as we look at it now and of course judge jackson in hindsight has to deal with the issue of materiality knowing what he knows about the first trial and the second not substantially similar and he would talk in general terms about how he arrived at that decision that testimony is in effect the same testimony that would be given by doctors wrote even if the testimony is cumulative different because barrier is the only one way and avoid ph i keep hearing motive and i agree you're out of there that is that is their argument but but that does not suggest but i would say that does not rule out the possibility of other areas of impeachment for dr berry or i mean just because he isn't getting gray i mean that's true there could be a whole lot of things would be and i might sound like i'm disagreeing and i i'm not in the sense that doesn't that that's a rhetorical question doesn't that become the issue then wait for the testimony if dr barrier is not subject to a certain type of cross examination that that then becomes a weight issue he is not a magical witness who is so completely different and so as to dr berry or there may be a million motives as to why he gave this opinion which made him which take him out of this materiality claim his defense makes some peculiar we're focused on peculiarly but all witnesses have the ability to be cross examined in fact this witness we know now has pleaded guilty to wanting to have sex with a fourteen year old girl and so there there's a lot to be considered whether there is the problem  maybe wrongly but i don't view this is a mens rea issue this is a this is a pure decisional issue on the quality of the substance it has dr berry or has no impact on their mens rea a because they were completely unaware of sent at the time of their action there is no evidence that this information from dr berry or was not made public until the deed a trial which was after after they evidence nor has there ever been any evidence that the defendants knew about dr berry but still it seems like to me this comes back to one is there a qualitative difference between think they have much of an argument but that's not happened that's not what happened because they were only allowed to have two because there it was excluded and i'm still not quite and i guess i would offer to the court that the district court judges frequently are called upon to make these balancing decisions and unfortunately because of the posture we're in now the frame of reference is slightly different but again i would maybe foolishly come back to the issue that this is a witness who i don't think we can look at in a vacuum he is going to have thank you for just a couple points that i want to make quite quickly the first is that the government persists in a mistake that judge jackson persisted in making and that is to conflate the intent to sell with the knowledge of the character of the substantial similarity of the substance  for certainly one thing i want to show the but what judge jackson gets hung up on is this notion of because they were selling excel are eleven before all of these things happened in july and august that somehow or another that means they knew that it was a controlled substance and log and our evidence would be yes they were selling it because they thought it wasn't because they were getting advice that it wasn't from timothy dan daryn lawyer in florida from adam libby the chemists that they work with so the government and judge jackson are conflating these two issues which are different pieces of the mens rea of the knowledge question but they are very different and they should not be put together the  government with talking about all of the rule of the rule that the government was looking for is the compulsory process because the rule of the government is looking for does not give the government a veto power on who are witnesses are doesn't give the trial judge a veto power on who are witnesses are third point i want to make real briefly dr barrier if they believe he's such an impeachable witness why are they fighting tooth and nail to keep him out every court we go to where whether it's out in the valley whether it's the folks in california they're fighting to keep the barrier out why are they keeping fighting him so hard barrier actually has testified twice one time there was a a  let's see one of the other points in sort of to wrap things up imo of course his other questions about other issues but the things that i sort of want to respond to i did rather quickly and i just want to touch on one thing that we are asking the court to remain and to remain and to have heard by a different judge and if in the court may decide that a way to deal with or not deal with some of these evidentiary issues would be to remain to a different judge instructions to consider those things out initio as they may appear in the context of a trial or something like that so that it's not seen the judge jackson's rulings would not be seen as being the wall the case and somehow binding on a different trial the other point that i want to make quickly you have last time around you issued a ruling fifteen days after our eighteen days after today our clients are going to get put on a bus to be put on a plane to be flown out to nevada if they are not bonded out and so i don't know whether the court would be would be in a position to make a quick opinion to make a decision as did last time but i just wanted to know that if there were a way to make a decision let's say in thirteen days rather than in twenty one days you could make an enormous difference to our clients as well as to the government in the expense of how they get i don't know how to achieve that i'm sorry let's say that they've got a trial date in nevada that starts may may thirteenth and the b o p s or the marshal service process is that they move him out there a month ahead of time so because the particular prison there i had talladega they moved people out on