it please the court my name is david matters and i represent mostly sahal year but one thing to note that what always look like a three hole punch in front of you is the microphone so when you have papers rattling over it is that gets picked up on the audio on the or you as well my argument today is going to focus on those are just single point of error which is that the government failed to prove with sufficient evidence that lisa hall you're the pharmacist in this case knowingly join in agreement and conspiracy to describe to distribute controlled substance outside the scope of the professional practice and not without a legitimate medical purpose th that not only did he not have an agreement with ms hall your as part of the conspiracy but he also took action or took steps to hide his conduct from this hall your and the over two hundred sixty other pharmacists that fill prescriptions during the conspiracy the rule twenty nine argument was really brief it's one sentence on the conspiracy as one sentence again then you file your motion for a new trial there wasn't much given to the district court on this point that you're making which isn't a difficult point i think you're right i was the jury had your argument right no agreement there not the doctor says no agreement where's the agreement jury had it and also on the circumstantial evidence that you had conduct by m hall your that was inconsistent control and we would say contrary to the government's theory of the case and someone who is and knowing participant in a conspiracy her role as a pharmacist and i think these cases are especially difficult because every pharmacist that filled one of these prescription advance but you got a mere presence instruction you got the great caution listening to a government flip instruction so it's all there for the jury yes and then to us you give us just two cases on insufficiency in the only fist circuit case you give us is going solace where we affirmed the conspiracy so what's your best case that there isn't enough proof of an agreement you aren't in and i reply brief we also added a couple of other cases but we were but those those cases are it's your time short those few leave a lot on the equal must reverse theory didn't we last year overturn that yes your honor and why are you citing a case that last year we said is no longer good law well and that what i was the argument was going towards and where we struggled in and in an hour an argument on appeal is where you have someone who by their actions like this pharmacist just by filling the prescription she advanced is the conspiracy she's in just like any of the other pharmacist that did it and so going to that extra level of knowledge and so the cases that we tried to cite were the cases where there were discussions or analysis by this court of knowledge that went beyond just the person's actions which in his case you cited i didn't find one in your briefing you cited the  i can supplement with the best case that that i can do but at this point i'm drawing a blank we're going to one more minute ok thank you are again coming back to the system circumstantial evidence if you look at ms hauliers conduct in as a as a as someone who is alleged to be a participant in a conspirator in this case she took actions that would be directly contrary to that and as a pharmacist i mean she didn't fill prescriptions ar she routinely use medicare medicaid and insurance which and medicaid medicare don't reimburse at the same level as  employee of arbonne pharmacy and said that that never happened and in the video to anyone right right but it but also the pain is a government witness and in her testimony i think is probably the most important because it reinforces the argument that miss hall your conduct was not that consistent with someone that was  they call her a herder the government's theory is that if you are someone who brought in multiple patients to see dr put around then that meant you were a co and in this bryant's case unlike the other defendants there was uncontradicted evidence in the record that explain why that is not a reasonable inference that you could draw specifically unlike the other defendants ms bryant was a caregiver she had people who were low income and disabled that she would care for some in her home some in their homes by caregiver that's not a doctor or a nurse  doesn't have medical training but she would do things like help feed them up bade them make sure they were taking their medications the people that were under her care were low income and disabled and doctor could draw on the government's lead witness acknowledged that those types of people typically need transportation don't usually have their own car even if they did can't usually get around and he said those are the kinds of people that ms bryant was caring for he also acknowledged and it's pretty logical that if you're someone who is having a hard time making ends meet which mr bryant was according to the record and you're caring for people who are low income and disabled then it would make sense that you would take them into a car pool kind of situation save money on gas would be more efficient and so the record actually indicates that dr prodrome said that not all of his prescriptions were or were not legitimate and his testimony was that he had no reason to deny that the people that mr bryant were bringing had legitimate need for these medications the same was testified to by irene pena the government's witness who worked at the urban independent pharmacy she said she had no reason to believe from seeing this point that she was doing anything improper or illegal and  prodrome had no way to say that miss bryant was doing anything wrong that was not the case with other people he testified that he thought other people were selling the drugs that he prescribed he to prove up to a reasonable jury that mr hudspeth had an agreement to violate federal drug laws specifically in this particular case that in which to prescribe and dispense hydrocodone and other medications outside the scope of professional practice and without a legitimate medical purpose in looking at the evidence that was presented in this case especially you focus on the the evidence and testimony from d patient referral agreement which he agreed that he would pay thirty dollars to mr hudspeth for every patient that he would bring to dr patrols clinic dr joan testified in court that he didn't believe that there there was this that would statement was attributed to that to mr had spent however if you just look if you look at the other evidence as far as i was there in the green that i don't believe that statement standing in of itself or on it is scope especially when there's testimony that mr has spent he wasn't present in the exam room there was no testimony that he told the doctor on what to prescribe dr drone testified that some of the patients that he did see had legitimate medical purposes that he prescribed the medication for in some way but most did not but again if somebody had a pain clinic is saying that they are in pain that is something that's not necessarily verifiable except for what they say government characterized it that he pitched it to him that he he but the evidence shows that all that that was the conversation was about when when prodrome was further questioned on it was the basis of how much money i'm going to give you prefer there's no there's no further evidence of far as mr hyde knowing what dr hudspeth i mean dr drone was going to do when he examined those clients and give the medication or not and there's no evidence to bring in ten to twenty patients a day right that's correct and it was it was scheduled as well and it was from a church group and from a homeless shelter  by place a court good morning my name is john stickles and not represent mr josephus austin mr austin got in this case because frankly the investigating officer made a mistake the c during the course of the investigation the officers went through the video from the poll camera which is rather poor quality when the doctor drones patient list and kind of matched up what they th picture looked like to the person only patient list unfortunately in mr austin's case they made a mistake and incorrectly identified mr austin has now they call him herders bringing people in officer admitted that he has identification might be wrong and he admitted that if he had been fighting wrongly mr austin was not responsible for what they're saying idiot there is no evidence that mr austin was any part of agreement no west evidence there insufficient evidence of mr austin had any knowledge of any kind of agreement and there's no evidence or insufficient evidence that mr austin had any agreement to voluntarily participate in this conspiracy  but we'll see if the government has a different point of view technical turn wouldn't have agreement i thought he was sent basically there's no agreement he's denying that she protests a misreading that i don't take the testimony that way your honor and certainly the jury didn't the reason is because i think what trying to indicate was he didn't have a monetary arrangement with lisa holley or to perpetuate the scheme when you asked someone do you have an agreement i think the natural way of a witness would hear that a jury would hear it is was there an exchange defendant and it was the same pattern of operation essentially that's correct but all i can do your honor is offer of the government's view and what i think the jury would have taken it as that didn't seem to me the government's view right because the concessions that  made were in cross on redirect there was no effort to clarify that you only meant no cash agreement that wasn't the redirect by the governor there was not redirect on the fact he was asked explicitly did you ever give her cash she said no that was a separate question from where he said i had no she had no agreement that's correct that is the record here how many times did he say he'd ever even met miss heller i don't think he i don't think ever said he never met her how many times he said he matter how many times the one time when she proposed by phone that they meet to discuss how prescriptions would be transmitted from his clinic to her pharmacy and and that respect your honor that is testimony that he doesn't have an agreement or the government's theory of this case is that one time they met an agreement was hatched i think and well that's certainly evidence of an agreement he then said there was no agreement she's the one defendant th it's no cash she gets no cash but she gets over for almost five thousand prescriptions from his clinic and to her pharmacy that she has an ownership interest in so i mean there's a financial incentive for her to have this arrangement and to turn a blind eye to bogus prescription in your in your brief to us related to ms holley or skill at twenty four and twenty five you emphasize that she isn't attacking the count to substantive offense that would be supported by the pharmacists claims that this is big red flags was that an increased statement yes that is and i'm a intended to say that right up front in this argument count two was actually dismissed before trial yet the government's initiative that's correct so that argument that we should not credit the insufficiency evidence is just wrong in the brief that is correct i apologize what would you remember in your entire discussion is holly or did you support it with any case citation for sufficiency as to a conspiracy agreement when the clip government c s this is a difficult case i share judge higginbotham is concerned this is the only pharmacist and you did develop a lot of expert testimony about red flags look at the volume she's treating look at what she's doing in the pharmacist that would all go to count two then in your brief you say well she's guilty because she didn't attack count two i but as to count one you you you're agreement theory where's the proof of an agreement i think all of that evidence also goes to count one your honor because the conspiracy was charged to distribute the hydrocodone but it has to be knowledge of the conspiracy charge to can't be knowledge of illegal activities generally i understand your honor but i think that the evidence of the red flags the that mr hall you're personally reviewed every single prescription the fact that mess hall you're the pharmacist wanted dr patel and soap notes and the expert testimony that that would be unusual but if you got them you should look at them and any evidence that even though she was a primary filler of these prescriptions or several of pharmacies that were filling the prescription i'm sorry what was the author other pharmacies who at that were filling these prescriptions not just paul years there were but that there w somebody who decided not to go that direction without any agreement with dr pajoy own willing to make the money of all these extra prescriptions violating probably consciously certain laws but they did of what was going on maybe but was not willing to forego that income that's not that's not enough is a well that may not be enough but that's not all there is there only ask is that enough you tell me it's more to this case but is that enough just to her knowledge that probably something improper is going on and she ships she still willing to reap the financial benefit of it doesn't she have to enter some sort of agreement with dr patro i think she has to have some agreement with some other coconspirator ok and i think we put i think that the sheer volume of the prescriptions the fact that the complaints in the soap notes are all generic are all answer special agent stapleton testified that after reviewing the records he believed that i think it was some close to fifty percent of the prescriptions that were filled at her clinic were for controlled  substances and they were were just for controlled substances they were they were for these particular the the same i thought of the evidence was that all of the prescriptions were for the same controlled substance yes that's  record it is but as with all things in the record there is there is some nuance to it in that when he said he lied what he meant was and this is if you read that testimony that portion of the testimony it's entirety when he says he lied what he means is the prescriptions are are bogus there fraudulent that's what he wants so when he says wasn't denying that they knew that he is that what you're is that where you're interpreting that right that the testimony was these prescriptions are fraudulent yes so that means you lie yes so that that's in context that's what it what it is that he led us for a willful blindness instruction as to holly or no no ron that's that can't be the basis for knowledge of an agreement that's correct and there was not in the charge let me ask you about austin and you certainly know what the argument is awesome is just a bystander for this what is the evidence of the frequency with which he was there with posing counsel starts with his camera but there is direct evidence testimony of austin's presence to summarize that for me does seem to me he's a best a pretty minor participant and maybe just a bystander is what i'm concerned about with certainly our cassandra flores who worked at the put drum clinic testified that austin came in over forty times in the eight months that she worked there he's in the cash logs for the clinic which is government exhibit four times in eight months he was actually getting prescriptions himself for his personal use in the correlation already drawing out of that how many times he needed to be there just for his own medical care well he would have it would have been there at for himself a maximum of once every thirty days because that's how often you can prescribe hydrocodone and my friend at the bar makes mention that austin was not in the room while he was in the room your honor he was in the room for his own patient visits when he was getting hydrocodone prescriptions for himself so in addition to being at the clinic that frequent and that many times in eight months again the government's exhibit two at page ninety nine two four two two six six he's in the cash logs shown as pain money for his visits co conspirator elisa smith identified austin as a person she knew to be involved in the same scheme that she was involved in that is the overarching scheme of obtaining these prescriptions and later selling the pills austin admitted to special agent andre byers in an interview that he transported homeless person from the bridge which is a homeless shelter in dallas to put drones clinic and drone testified that austin was in effect hudspeth the system and in this enterprise and frequently hudspeth with the patients transporting them to the clinic so that's drawn made some incriminating statements after the lunch and there was some dispute about whether he he'd been coached but cross but please i'm sorry i'll stand is also on a government exhibit i think it's it's one of the early exhibits as he's on a list that the clinic maintained of persons who brought in patients and paid cash  prospective and i understand that they record and from these cases in general you bring in a homeless person and they all have a pain problem the other side of the coin is that they have an addiction problem and those drugs are common knowledge and gorg we see this as precursors to heroin and the first time in a shutdown of these clinics that the heroin sales go up to that if you're dealing with a point my suggestion but so then you're in the numbers and also the source of it so what you're arguing as i understand it as they say you have a lot of these homeless purpose of being growing in rain brought in and not the lazy or the reasons why they're homeless is a drug addiction  me it would not and it would provide her ostensibly with cover for filling the prescriptions because the soap notes that would be transmitted along with the prescription would be an ostensible justification for why this person needed hydroco and but it wasn't even really a good cover because all of the soap notes indicated the same generic diagnoses back pain and anxiety and so you have just droves of patients coming in  that they went the other way and as and i know the court is very experienced and hearing these conspiracy to commit to distribute drugs some folks just aren't very good at covering what they're doing and i think that's what happened here the i'm sorry ones that are called aren't right judge to address the first issue that there was no aiding and abetting is part of the indictment the government wants to focus on the meeting but the one single meeting between dr who drone miss hall you're in the majority owner of urban pharmacy it had a problem with forged prescriptions that miss hollywood actually called the dallas police department and their diversion division miss irene pena recognize the names of the officers who came and visited the pharmacy to deal with the forged prescriptions again we would argue that that's not consistent with somebody who's in a conspiracy at least from the role as a pharmacist and quickly government exhibit one hundred and one hundred one or spreadsheets created by the case agent specifically exhibit one hundred shows that one hundred one shows that urban pharmacy filled and controlled and not controlled prescriptions and that during the time patro testimony he makes and he made the statement and it's in the record and fourteen one zero eight four three point nine six nine where he says that his initial intent of his initials on the prescriptions was to give the pharmacist a belief or something that they could rely on that patient had actually been seen by the doctor and that that was his effort to  just to clarify a couple of things there was no evidence that this bryant received any cash unlike potentially others and doctor the drone never said he had an agreement with her kind he didn't deny that her people had a legitimate medical need and he said she brought fewer people than the others he didn't say she was selling didn't think she was selling drugs or her patients were selling them and he patients to the clinic for dr patro own it was a pain medication clinic or pain management clinic he went he brought people he facilitated getting them there innocent activity it could be viewed as there's nothing illegal with bringing people to a pain management clinic the gist of it is was there were to get to the agreement with the conspiracy to dispense these hydrocodone outside the scope of professional practice and without a legitimate medical purpose doctor had i mean mr husband was not in the examination room and is dr jones testimony that he per screen these medications to some that were legitimate and sometimes not but again there was speculation by dr put drone that perhaps mr hudspeth was taking the medications and going out and selling it on the street but i think that when you look at that testimony on cross examination you see that that's just surely speculative and they had no knowledge of that and nobody else pointed to mr hudspeth doing that kind of activity so then the question becomes is it illegal for hudson to receive money or financial benefit for referring patients to his clinic initially he got thirty dollars for each person that he brought and then it moved to where dr drone stated i'm not going to pay you anymore you know how what i'm going to do i'm going to give a free office of a get free medication and i don't believe that he got three medication your honor i don't i don't believe that i believe that he got his from the testimony in the record it states that he received free office visits or that he received free office visits and free exam i think that's the testimony from the record i don't think there's any testimony that he received three scription i may be mistaken but i don't recall that or you it is true that there was evidence testimonial evidence that mr alston had been in the clinic over forty times in a night of the period however the testimony was also very clear that dr jones office kept meticulous records about who came in the office when and who they brought into the office the evidence the testimony was that according to the patient's ledger and the appointment calendar for dr prodrome the only time mr austin's name appears in that calendar is when he came in for his own medical consultations for his own appointments it does not appear either were else an lack of the other people here who  in the calendar multiple times judge higginson is correct mr austin is only in this case after dr drew home took lunch during his de briefing talked to his lawyer and came back in the afternoon and said oh yeah it's mr austin th was here i think the testimony in his case is clear that mr austin was misidentified by the officer from the first from the very first part of the investigation and that the only reason is here is that the officer made a mistake misidentified him in the real person