preserve any of these issues and at least passively agreed to the conscious avoidance charge that we now take issue with however i urge you to consider the issues presented here because i think they're actually quite important let me start with the first issue the conscious avoidance charge in a single objective conspiracy at least on the facts as presented in this case simply makes no logical sense and i think we all agree that we want the law especially as it conveyed to jurors to make sense and to be logical the court this court originally recognized and in one county case that it was illogical to permit a conscious avoidance instruction in a conspiracy case now i know that the court has since then backed away from those early views and while it is now considered established to break the second element of conspiracy into two parts one allowing conscious avoidance and one prohibiting conscious avoidance i'm not sure that this precise question  ever been placed before the court in this way namely that the man conny director of should continue to apply in a single object of conspiracy or at least on the facts as were present here and the reason for that yawners is that in a case where the conspiracy has one sole objective a person simply cannot willfully intentionally join that conspiracy without knowing what the objective of the conspiracy is they're intertwined and so in that case as here are the instructions simply makes no sense a conspiracy by definition is a criminal agreement here dr low could not join in the criminal agreement to unlawfully dispense oxy code on without knowing the purpose of the conspiracy was to dispense so actually code illegally but there was a lot going on here that make up that one goal there are a lot of steps a lot of ways of accomplishing that goal for example the jury could conclude that he consciously avoided going to the doctor terming clinic southern bowl over he was only there once i think the testimony was that he puts up cameras he talks to the staff a lot why couldn't the jury conclude that he did that on purpose he didn't want to be seen at that southern belle of our clinic you say is just one goal that isn't broken down into different parts to achieve the you know to achieve the that goal of the conspiracy but that may be but but if the jury the jury is not permitted to to consider conscious avoidance to determine whether he joined the conspiracy that's true and so cases that you agree with that right is just the aims and objectives of the conspiracy right but i'm what i'm saying i guess that those are intertwined when that there's only one goal and you say well there may be different steps toward that goal but it's still one goal the goal is as charge an indictment unlawfully dispensing oxycodone without could you say that in a drug conspiracy the goal is to sell a lot of drugs and make a lot of money well not necessarily it depends on how it's charged do you know some dark conspiracies are charged that people are selling heroin crack different different kinds of drugs different amounts of drugs through just selling heroin in one block in the bronx and that's the only goal and there's ten people involved that they can charge twenty countries avoids their case in you can charge it in in the substantive count of and if mr in on the conspiracy but not in a conspiracy if it's a single objective because again i don't think it is a man kind of decision originally stated it doesn't it's not logical right it's not how how is it that you can i mean for a jury to to try to figure out what it means to that they have to find that  person intentionally joined the conspiracy of the conspiracy doesn't exist except for the objective but then that they can use conscious avoidance at something consciously avoided learning what the objective was it's simply illogical and i don't understand how how one can reach that conclusion normally what the magic of two of the single conspiracy element of your argument is what's the magic of this applying where there's a single conspiracy as opposed to an a multiple for example and conspiracy example if if a person joined a band of smugglers that would be a joint joining a conspiracy to smuggle goods knowing that their smugglers knowing that their smugglers are right but that they then consciously avoided learning that they smuggled not only unlicensed cigarettes but also you know drugs or sex slaves or something that in that instant there would be multiple objectives of the conspiracy to smuggle and that you're assuming that conscious avoidance doesn't apply to one but doesn't apply to the other g think what i'm saying is if if a conspiracy only has one goal as in the case here unlawfully dispensing oxycodone then that goal is what makes the conspiracy there is no conspiracy without that goal there is no you can't join that conspiracy without knowing what it is and so you can't parse that element into case the judge charged the district judge also charged that you may not rely on willful blindness if he actually believed that the fact did not exist and so doesn't that mean here that it it was harmless necessarily because because doesn't that mean that if the jury found that it was legitimate dispensing of oxy code on they couldn't convict they couldn't have believe is an incorrect answer which is that she's said that conscious avoidance went to the element of knowing association and knowing association alone first of all is not the correct standard for for a conspiracy it's also well lo knowingly associated with a conspiracy she says yes and then she says but go back to the we'll go back to instructions well that i think any person i think it's reasonable to assume that when they a jury gets from a court one word answer to their question then are then going to go back to the to the to the charge and say well actually it says something different than what she said so we should figure out what that means that's just unrealistic so your honor what do we tell the courts in these circumstances first with respect to what you just talked about what do they have to say go back and recharge the jury give a more fulsome instruction in terms of the the question by the jury well i think that the judge in this case had two choices one she could simply say to the jury i'm not going to elaborate there's nothing more that i can tell you than what is already in the charge or b she could have said she could have been the correct answer or a more full explanation of of what the what the jury want to know but she sort of chose a middle path which was to give a brief one word before and the she talked about all the cases about this stuff and she said because of that i just can't extemporize extemporize and chat with you about what it means all i can really do is refer you back to the church i know but what's ironic about that is she said that and actually that's not what she did she she then went on to actually answer the questions that the short answer to that your question is yes but you should go back today to the jury and to the jury  conscious of wooden's trial the government presented very substantial evidence of direct knowledge including calling for cooperating witnesses three of whom testified to criminal understanding's they had with the defendant the government offered text messages in which the defendant was put on notice about specific crimes occurring at his clinic that offer video surveillance the defendant was accessing at his home computer in which he could see criminal groups gathering at his clinic now with that said the defendant did put his knowledge of the specific facts at issue that is his knowledge that these all prescriptions that were being generated in return for cash payments were medically unnecessary and so consistent with the law of this court the government was intitled to an instruction unconscious avoidance because the defendant had put his knowledge at issue and there was a reasonable factual predicate for a jury to find that the defendant had deliberately closed his eyes to that fact that was why the instruction which request in the request to charge that's absolutely right your honor and for just that reason there is some some reason to believe under the invited error doctrine that there is total waiver of any such claim to error on appeal the instruction was properly given there  a factual predicate for it and the jury's verdict speaks for itself the jury did ask about conscious avoidance right away to ask about a number of things your honor and actually here again the facts of what happened are important because the jury gets this case late in the day on wednesday they deliberate for about an hour on wednesday they come back on thursday they deliberate all day no substantive notes at all i think they asked for an easel at one point otherwise no questions they then take three days off because the court doesn't sit that friday they come back on monday morning first thing on monday morning they send out a note that has a number of very broad questions what do we need to find what is conscious avoidance what is near socit and what is reasonable doubt me so yes among the things the jury asked about was conscious avoidance produce really not the only issue that the jury asked for clarification about and what does the district court do the district court tells the jury very clearly i cannot simply chat with you about what these instructions mean i cannot extemporaneous extemporaneously talk with you about  these instead she points to the jury very carefully back to the original instruction and instruction which was entirely correct there's no question about that on appeal and point by point tries to direct the jury back to that instruction the jury has back to more correctly and fully state the second element which is whether the defendant knowingly associate himself with and became a member of the conspiracy she she also at another point in the supplemental instruction specifically reads the second element of the instruction as in this is the appendix at fifteen fifty six you know did dr loeb knowingly become a member of the conspiracy that is did he knowingly associate himself with the conspiracy in participate in the conspiracy to distribute narcotics so two separate points during that very brief put on quote supplemental instruction judge scofield did correctly state the elements that the second element and more importantly the entire purpose of her response was to direct the jury back to the written instruction which of course each of them had in front of them which fully and correctly stated the second element and fully correctly stated how conscious avoidance could be applied to a portion of the second so for all those reasons i was going to ask a judge the judge the part in the kentucky case you have in your footnote he just basically say it's not controlling and may be wrong you have any other response to judge the pars decision which  reflects the same intuition i think as as the defendant is arguing here yeah so a couple of things in the first issue and we know this in a brief is it's not clear to us that the judge in kentucky was even correctly applying six circuit law and actually there appears to be diverging opinions within that circuit on this issue and i think the second issue and in terms of correctly applying second circuit law goes back to judge journeys point on the issue of how there can be multiple issues even with all facts from which one could even further the final fact that the defendant put in dispute which is the issue of whether or not he knew those prescriptions were medically unnecessary and i wonder if the intuition of judge the part i wonder if it's not accidental that that that opinion was written also an anoxic own case for the following reason in a in a typical drug controlled substance case someone picks up a suitcase they don't know if it's heroin or cocaine either one is illegal whereas in this case if they don't know the goal is illegitimate distribution of oxycodone then it's totally legitimate so it so that the line between knowing and not knowing the illegal purpose is actually to the line of completely legitimate condoms so i wonder if that's why the intuition is a little is a little different in this than your typical drug case where you know what's going on is illegal by definition could that be a distinction that's relevant here i think it's certainly true that in engaged in buying and selling quote unquote secondhand airbags and much as with oxy cottoning these are legitimately purchased second hand air bags there is nothing inherently unlawful  about joining in a conspiracy to buy and sell secondhand airbags there as here however there were lots of facts from which the government could either argue the defendant had actual knowledge because here are all the circumstances surrounding these airbags that would have led him to know that they were in fact stolen or in light of the defendant's denial of that knowledge get a conscious avoidance instruction here here as there are there is there are any number of red flags from which the defendant could have drawn the inference of the knowledge that is that the prescriptions being written were medically unnecessary which would have converted his conspiracy to distribute high volumes of oxy mr me d l you have two minutes for bob thank you on the three points the government states the case was overwhelming in proof of actual knowledge and it was presented as such and that is true although the fact is that while there was plenty of evidence that a conspiracy existed the evidence was far less overwhelming that dr lowe intentionally participated in that conspiracy mr discount mentioned  three cooperators no cooperated testified that they had any specific explicit conversation with dr lo about this conspiracy the crew chiefs who were the ones who really randy's drug this business in the clinic did not know dr low never threatened to fire him never reprimanded him for not writing enough prescription never made the number of prescriptions he wrote a condition of his appointment so it's not surprising that the jury struggled with this issue and after you know two they feel some safety that if they give a charge that is requested by the defendant it's not going to come back and bite them when we all decide are we three or two of the three of us decide that that charge should not have  but i mean what what's the how do we articulate that so that the jurisprudence of this circuit at least isn't isn't something very discomforting to the to the district court of the way that this came about was a month before the trial started included draft charges it wasn't clear whether they're all going to be charged this is really an issue of failing to object but i think a court has a responsibility to support as a responsibility to to determine whether in charge fits the facts of the