good morning and welcome to the th circuit judge nelson and joined by my colleague on the th circuit judge wallace judge wallace and i would like to welcome judge win who came back for a nd day has also been submitted i will hear argument in three cases today the st of those is united states of america versus david leahy and that is a case number eighteen dash magoo was charged with overprescribing to five patients based on thirty nine specific prescriptions and his expert at trials and those prescriptions were medically justify that the trial became a judgment on his overall on those prescriptions as well that's correct so what the trial came down to was doing experts who were equally trained equally homicide one expert saying that the prescriptions were medically justify the government's experts saying that they weren't medically justify and of course the government had to prove beyond a reasonable doubt that they were not medically justified and that mr libby knew and intended that they were not medically justify so in order to get to beyond a reasonable doubt the jury would have had to just credit wrister of the goos i trained expert and the way it got there is because of this other act evidence that came in that the balance for the government and that evidence there were two forms that were particularly precious one was the data that was practiced why that the government draw any inference from the data about the propriety or the impropriety of the prescriptions contained in the dataset and the government's medical expert did not take a look at the deed out or opine on the this evidence arguably for that was the proffered intact is so the government to get that intense the government had to establish that the data actually showed that the prescriptions contained in the the government argued that lose our own statements to investigators his statements to confidential informants and to the grand jury all showed his intent the red flags that he supposedly overlooked in his treatment of these  own understanding i'm not sure there's a waiver here effect what you're attempting to argue no i meant that our primary argument is the government never introduce foundational facts to show how you get and that is what differentiates these two cases both jones in our case from iraq which is where the government alleged a practice life roski and it brought in several experts who looked at the dataset and time i think what is shown is that at some point in retrospect he realized that he was an outlier prescriber and that he should have been taking a more conservative approach but that certainly doesn't the admit to the f b i agent that i knew we were prescribing a large amount of pills that's correct he did that and i think that fits within a government argues that you opened the door relative to the evidence of his clients and the trial counsel opened the door on this by cross examining the government's expert about the charge client or their charge cases not involving death as at the government's expert described as likely or possible council didn't open the door to this as he elicited one hundred percent accurate responses that two of the named patients did not die despite what government experts had categorized as lethal amounts of prescriptions and there was no inaccuracy there was no misleading personal answer there and the permit responds always has to address the particular misrepresentation here there wasn't misrepresentation but certainly bringing in evidence that three patients had i did not hear or anything that was any statement that w did this defense attorney ever suggest that death was not a possibility with quantities of drugs he was prescribed he did not he did not make that suggestion nor did he extremely prejudicial it's hard to imagine more present prejudicial information and the government got the benefit of having that innuendo mr le who caused these tests without actually proving that the acted outside the usual course of medical practice in several different forms there were recordings from an undercover d e i investigation that show the defendant soliciting illegal drug transactions scheming about how to avoid detection and repeatedly what jury goes to the defendant's knowledge that prescribe being in these amounts and combinations raised a considerable risk of overdose even for patients who had developed a tolerance why anybody in this defendant has to by the cross examine him about reese simply overdose in his testimony he conceded that he knew about two of the deaths in the course of one of the deaths he purported not to know because of the other or to be aware that there are of course is  suggestion but i don't understand from your statement just now that the defense counsel had actually suggested the do was not aware of us so i'm trying to figure out what made the yes roger that that is so if these three people died how how instructive is it if they diet lower levels are higher levels and instructive is it true of the charge conduct that he prescribe particular amounts to other people i mean if you have had the evidence that everybody prescribe to culum level to die that might give you better evidence as to in ten but just kind of three people died  respectively different levels of prescription therefore he should know that as to a th or th or th patient that differing amounts of prescription examination in a jury trial it was followed by a bentley limiting instruction it wasn't part of our case and she we didn't bring it up in our submission and it was best we were settled by other evidence let me ask you because we're you've got a bit of time to and then you bring in the expert on from the d e a s to give testimony in comparisons between the experts prescription levels and the defendant's u character he's given testimony that certain levels of a prescription may have been medically appropriate way then attack that truthfulness of that opinion testimony is by to bring in all the evidence regarding his comparison to everybody else because your honor his essential theory was that these patients were exceptional and that he believed that and his want to make sure you know the district court found that to the extent these errors are found to have been committed the district court agrees that the prejudice flows equally to all counts including the two counts against the confidential informant and i can submit the court's order to the court because it's not currently in the excerpts of record but the district court already resolved that issue here the government shows what to charge it had abundant evidence to prove those charges and it was unnecessary to bring in this inflammatory and other unsubstantiated evidence causing at least three patient and over prescribing across the board it's unquestionable that this affected the jury's decision making so we