record and some in the limited time that you have issued seal free to go straight to the heart of your argument probably probably going to have some questions do have to pay attention to the clock be mindful of our time but if you're answering a question substances act counts and i'd like to address three issues riffles counts st why they're insufficient nd why the jury instructions were incorrect and rd why the sentencing was unlawful if i have time i'll turn back to count one and discuss why the instructional error for count one was not invited but let me start with counts two through nine the control substances act counts and in those counts the government's theory was stated right at closing but that theory does not state a crime under the control substances act every single conviction under that act under title eight hundred and forty six dollars the drug trafficking statute involved that involves a doctor involved tax where there is no medical necessity or is this court put it quote not for any legitimate purpose and so the case that was cited a supplemental story by the government just last week ruan those facts actually help our case very much because in that case rule on the doctors there prescribe the most powerful opiates save for dying cancer patients and the doctor there didn't give it to cancer patients there were no kit cancer patients he gave it to addicts to feed an addiction and the doctor in that case not only gave it to non cancer patients to feed addiction the doctor had stock in the company that owned the opioids and so the expert in that case testified there was no medical purpose at all for the st scription in that case similarly in ignacio another case by this court that the government relies pretty heavily on in that case patients were driving across state lines and the doctor prescribed forty three thousand doses of opiates to addicts who did not need it here however for counts two through nine is very different there were patients who actually needed on the pew been orphan that was being perscribe and the expert witness for the government did not testify it was not medically necessary what she testified was very different she testified that because he didn't have the eight hour course he was an authorized to prescribe the subox one for addiction for drug maintenance or addiction treatment that's very different then the rwandan case then the ignacio case because there was medical necessity for the prescriptions in counts two through nine the government theory was simply that he did not have the appropriate license the appropriate our current medicine of our cause i have a question and like and if the jury charge now the jury charge correct place sat the government as to the elements the offense had to prove that he did not for legitimate medical purpose or outside the course of the jury instructions on those counts for ok correct the crime the defendant became fat be found guilty if only the following are proved beyond a reasonable doubt that that court doesn't in order to find him guilty you miss fannie had not license or anything like that no it's so what they do your honor is they explain what outside of the coast of a course of medical practice means in that next page that's why those instructions were included and so the court ties outside of the course of medical practice to not having a license and so both the government's theory on these counts is wrong and the jury instruction defining what is outside of the course of medical practice is wrong there is a sit at where they say that's outside the medical practice on that page twenty am looking at page trying am reading it you know if say anything outside medical practice they just say in order to prescribe it you've got to do this and this and it's to prescribe it for certain purposes to prescribe it for detoxification and make treatment you're required to train that way for under the and twenty three in age twenty three those are the requirements for having a license and so what this page on page twenty does is just poll the definition of a twenty three and my question then is it seemed to me that the evidence about not having a license was really just part of the factual context of showing he was not doing this for medical necessity it was part of the fact that he never saw the patient surely he son has a prescriptions he didn't even have a license all of this related to the bat drop that the jury had to know about an artist of the side but that he was doing it for  legitimate medical purposes not tell me why that's wrong sure so so it's wrong for a number of reasons you'll see your honor that none of the patients after he got a license were charges substantive counts that's because the government knew and the government relied on the theory that he didn't have the eight hour course that's why they started their closing argument with that sentence that that not having that eight hour course was sufficient for conviction and so that was an incorrect statement of the law and that's why the jury instructions were so prejudicial on this point they didn't charge any patient after he got the eight hour course in september of two thousand and sixteen the government theory would based on counts two through nine on him not having that of course not your honor judge how you speak of the other some of the other facts i mean blank prescriptions and those other things those go to count one and the government's theory on count one the health care fraud deals with some of those other twenty three dollars that he have the right since he didn't didn't we have substantial additional evidence from which a jury could have in discussing the results of the multiplicity of task with his patients when it's clear from the record that he didn't or at least that was an inference that could be drawn he lied on the notes about a patient being normal clean and doing well at a time when the have showed that a patient was actually using violate to violate the stanford thank you judge marcus the answer is no for a number of reasons those facts that you just ticked off and the judge told mention before go to health care fraud on count one but n purpose and the answer to that no expert said it didn't the expert in fact said it did have a medical purpose the government's expert no patient say they didn't need it no witness said they didn't need the the prescription every single government maintenance addiction not being a good person but isn't it also clear that the distribution would be wrong if it was not made in the usual course of a professional practice yes as as that term is defined by this court cases and what that means is that and this court has said numerous times that it's for no legitimate medical purpose that it's not for the treatment of a patient language rangar is precisely the distribution is unlawful if the prescription was not made it for a legitimate medical purpose or and it's in that this down to t prescription was not may in the usual course of professional practice absolutely your honor and that's why it was usual course of professional practice among other things to leave pads  prescriptions without a date without a the name of a patient would it be the usual course to task on a multiplicity of any favorites and never discuss the results with the patient and then would it be in the usual course of professional practice to the law and its state on the notes the doctor's notes well the things that i mentioned w those items taken in concert constitute practice in the usual course of professional medicine well i have answers to each of those judge marcus but let me answer it simply and avoid it all because the page twenty of the jury instructions defines what you said there as not having the license so the jury was instructed you can find this doctor guilty shim plea by finding that he didn't take the eight hour one the answer is no your honor for the reasons we say in our brief i think i've run out of time and i really wanted to address that invited error question if i could have thirty seconds to do it  know your honor judge marcus this started the invited air doctrine with jury instructions back in a two thousand and ten case that you were involved in united states versus frank and in that case what happened was the jury was deliberating and they had a question about  instructions and the defense proposed an instruction which was given that's clearly invited there where the defense proposed the instruction and it was given that has been expanded now in other cases but the government is asking for it to be expanded here where the defense did not propose the instruction that did not include the elements of the offense it is not invited air in this case simply not to object it would be expanding that doctrine way too far so i'm glad i had just a couple of seconds to i think it's important i know my time's up i had a lot to say but thank you for hearing me out i don't think the evidence was sufficient in this case thank you mister marcus you saying three minutes or  please the court i think your honour's judge hall and judge marcus had it right this isn't the government didn't just rely on the theory that the that the doctor did not have the x number there are so many other things i want to add another thing to judge  three additionally honors i want to correct something that my brother counsel said the expert actually did testify that there was medical that there was not medical necessity we had doctor in the jury was entitled to rely on doctor clarke's testimony that the defendant was acting outside of the court of professional practice the prescriptions were a false diagnosis and that there was no medical necessity here what you've done here though is you run together whether it was a good medical reason there's no dispute here is that each of the folks who were treated with the opiate with the sox in fact had shouldn't problems and the treatment they have offered would be the medically indicated treatment or at least one of them for a diagnosis of addiction i have that right i think that's fair your honor yes so your argument really asked the sufficiency that the evidence really went to practicing outside the normal course of the medical practice here rather than the st but i don't think that i don't think i came up i think the district court mused about some strict liability but that was never in front of the jury your honor it was in front of it was just during it during the charge call and i understand it was  i would have to go back in and check your honor i believe there was something to that effect that was said in the closing argument i read it yesterday was that the ira no i don't i don't think it's fair your honor because the jury was instructed correctly the jury was not up to that let's hold aside the instructions for a moment you would agree with me would you know that as a matter of law if all you had was a simply to say that he didn't have to be a x number i think it is your honor but in this case we do have a lot more than that is there any case that is ever held at a violation of the i know that the data act is it's fairly new especially with the number but we have a lot more evidence in this case your honor as you and judge hall pointed out about the about the it's much more than the i think if the jury found that the doctor was that they work for a legitimate medical purpose and outside the usual course of professional practice so that would be that would be up to the jury and here the jury was instructed that to find a violation of a forty one dollars a one had to be or legitimate had to be not for the gym and medical purpose or outside the usual course of professional practice and doctor clark provided a great deal of testimony that but the united states didn't just rely i want to point out for the court only on the bully on the doctor not having x number as you and judge hold on you know there was there was more than and you're not really seeing the patient you're not treating the patient you're not counseling the patient or doing anything you say even though it is a drug that can be used for addiction you still are not prescribing it for a legitimate medical purpose and i'm saying that some mister marcus can be paired on that it seems to me that it doesn't matter that this is a drug that could be used properly to treat addiction but it wasn't and the other controlled substances were outside the usual scope of professional practice not that it was not that it was not medically indicated for the treatment of addiction she said that there was no medical legitimate medical purpose but the what judge hall was was discussing your honor that there weren't other there weren't that the doctor didn't prescribe correctly that the doctor didn't examine the patients who didn't there was no treatment that there were test results that he didn't even look at right of their cars in fact it doesn't all of that go to the nd prong of the destructive the prescription was not made in the usual course of professional practice that's what your case is about is that i think it goes to the st problem as well whether whether i believe it goes to the st prong as well for the same reasons your honor if your point is that if if there are unnecessary tests if he's not looking at test results are and that shows that it was not he didn't care and that these patients need it are not it's it's not clear that they were i wanted to talk about the invited error i wanted to address what my brother counsel discussed i understand in the government concedes that if there was not a proposed instruction here and i know judge marcus has written about invited or in other cases but i believe this is similar to the feldman case here the defense attorney said that's me or d the sylvester case where they just talked about that the instructions covered the basis here here the defendant invited the error and in fact the i think the point that needs to be made your honour's is that nobody i disagree that there was a health care fraud conspiracy in fact my brother counsel in his brief on page thirty three and footnote seven says says that there is a conspiracy so there's no disagreement and in closing argument there was no disagreement that there was a health care fraud conspiracy the only issue was the defendant's knowledge and the jury instructions for a conspiracy  that the jury instructions on page fourteen required that the defendant quote knew the lawful knew the unlawful purpose of the plan and willingly joined it end quote and that would negate any plainer i want so there's don't think that's what he said because he said more than that that's what he said was that be a violation of the law i don't i don't think it's an error your honor because on page twenty one the next page insists that's a medical doctor at the last ten minutes will doctor has violated the controlled substances when the government has proved beyond a reasonable doubt that the doctor's actions were not for legitimate medical purposes or roadside the usual course of professional does the court have any other questions or want me to address in their issues now not  because it is that we couldn't have the debate before the jury that judge holland judge marcus raise with those other facts because the instructions basically say if you didn't have the license then you have not prescribe within the course of medical practice and you need look no further than page twenty to the good faith instruction which says you only have good faith if you have the proper license by the e p a and sansa you can only prescribe in good faith if you have the proper license so it doesn't say more as judge marcus and judge pryor you asked it directs of verdict if you did not have the proper license and we know that that was the government's theory on the case because they didn't charge any patients after he got a license so the court should at a minimum remand for a new trial on those counts without the instructions on page twenty dollars twenty two cents which in essence direct the verdict  we know that these other facts that judge hall and judge marcus have brought up did not play into counts two through th specific and for sure counts three through nine the substantive acts the substantive counts because in those counts those are stated in the closing argument and in their brief at page forty three dollars if the court looks at page forty three dollars of the government's brief it says doctor clark testified that the bupa an orphan prescriptions buffer for september th that's before he got the license we're outside the scope of professional practice and without a legitimate purpose and then it goes on to say that he didn't have the appropriate license so it's very clear the expert witness the government's  theory the government's brief the jury instructions all said if you don't have the license you're guilty under eight hundred and forty six dollars and that was improper that theory was improper or for sufficiency the jury instructions were improper on that theory and therefore those counts at a minimum should get a new trial but i think should get reversed because the government's theory is an improper one and not sufficient finally on the invited error point the feldman and sylvestre cases that the government just spoke of judge mark is that that you were involved in some of the others those specific cases the defense lawyer was asked about the instruction at issue and in those cases the defense lawyer said yes that instruction itself covers the basis or that instruction is fine i understand why in those cases that might be invited air nothing like that happened here there was no discussion of the specific instruction and nothing by the defense that invited the air so i don't think we should extend that invited air doctrine that far thank you judge thank you chief judge pryor thank you judge marcus and judge all my seeing everybody on zoom