we have five cases to be submitted today on oral argument and if you know how the case is move along we'll take one or more breaks during the morning before completing the docket and we begin with united states versus good morning and it is i have to say it's quite another for me to appear before you and it's also an honor for me to represent miss sherry bennett who i'm proud to be able to be in a position to help explain what happened mark karr was convicted by jerry but she was not convicted as charged in the indictment and although there were plenty of witnesses who testified in the case and plenty of  boxes of evidence the evidence was not overwhelming with respect to guilt there's no question about those facts but it's my prayer that i will be able to help this court understand what happened the fields well respected doctor in our community and he opened a facility where he used radiation machine to treat cancer and he received referrals from many physicians in the community and then it became point will begin to have age will catch up with us but in all relevant times here doctor lives with a duty licensed physician in the state of mississippi and he had many business affairs going on and he conducted his own business and i knew that with respect to the issue of whether dr alliance was competent that we do have witnesses on both sides and that is a jury in chief as to whether or not he was he was competent but i mention it to you only to the extent that the question regarding whether the evidence was overwhelming or substantial might affect the various considerations that we have because sometimes can be overlooked if as respect to the jury instructions my client was convicted not for the criminal law violations but she was convicted based own regulations and guidelines guidelines from the medical board tells the doctor that before he can issue a prescription for a schedule two pain pills and just go beyond the question of whether the doctor followed all the rules about giving somebody an examination before you prescribe help that's your view of the facts but the government's view the facts is that she was pretty much just got his prescription pad and was using his stamp and riding over it and all of that and so i'm not taking a side on that that's for the jury but that's the point that's for the jury so the fact that if the case was solely that the doctor prescribe something to her and hand down a physical exam and that we're the only facts in the case i think your argument would have a lot more force than the actual facts in this case which are a little broader than that here's the problem with that yes they present such evidence that may have happened but when you look at the jury instructions the jury had no real guidance as to what that meant the only guys they got was was to  efect at the attorneys would argue what it means to say these two key phrases one if there was a legitimate medical purpose and two was the medicine prescribe outside the ordinary course of the medical profession those two things and in the closing argument mr minority or the government agree and minutes he said ladies and gentlemen we're not we're not questioning that there is a legitimate medical need and so actually to that extent i would submit to should have been granted in th and that's what it came down to so i thought that you know in the closing argument the government argued we have to show more than that doctor lines messed up because this is all the on doctor law it doctor wants is competent and he's messed up on these prescriptions he's not doing the exam he's not that you know if i'm a patient of a doctor who doesn't do what he's supposed to do before he writes me a prescription i'm not responsible for that the doctors responsible for that and the government admits that they had to tie sherry into that and i think they use her first name only because the you know curious about every different bennet's that mrs bennett the only time her into it by she's overcoming him because he's incompetent so how does that factor into all of this so if the medical stuff is getting messed up but it's is messed up that's not an order of the words they used exactly we showed dr lines is in violation with that and you know that didn't help us the government here because we didn't prosecute him we're prosecuting sherry bennett and jerry bennett so then they take that step this is a case about the incompetence of a doctor lives they said that well so why wouldn't the that be i mean how could you say it was harmful or not harmless error if that's all that was argued to the corruptly this is assuming you preserve and get in that whole mess then then what what's the answer there i mean in other words if you didn't submit the right charge and the charge that was submitted was to say isn't that a still a problem for you because don't you have a duty to submit a correct charge that well as an added element of corruptly that isn't in the statute but what we did and into a certain extent we have to get into the issue of whether it's preserved but in my issue and i gave him an example of what we did indeed additional bribery case with judge when gate out of jackson and back from two thousand and five and we used it and even though the word corruption didn't have to be in there but but that wasn't the beat the government's witness that there's a distinction between administrative my sense and of operations of the criminal law with criminal intent and so so we tell the judge that but he he left us with what we have issues that we have here the three the three key entities for why we were on trial and he was contacted by them and he would have to go investigate the criminal part of dr last condition were asked to d h ass had we're going to investigate  allegedly tells this witness that he puts on its case in chief we have nothing to say we have an attorney we're not going to talk to you and made it clear it was we and them it was horrible he was speaking for both of them now that was a violation cop fundamental constitutional right that no defendant has a duty in has of as required to have to take to make statements there's only one reason they put it on and that's because it is a common belief that despite our cherished to be loving fundamental constitutional rights of people won't talk to the police when they're being investigated when they must be guilty and that's why they put that in it at that point or was the doctor being  lines which actually is not what the witness said he was there because he was investigating criminal and become one aspect and because of the mississippi grown to conduct a medical license board something to do so he made it clear that it was part of this case while he was testifying contemporaneous objection was me and said also that my client doesn't have standing to make the objection but the action and the jury what did the judge  he said that my client doesn't have standing because it was the husband who said we have an attorney we don't want to answer your questions but it was clear that whenever mr th know that distinction was being made that's the argument he's making is did the jury understand that if it was just that the wrong form was filled out that's not good enough to convict her that you need to show something more like this business where she's kind the exception to toggle twenty one that allows medical professionals to to to dispense controlled substances they have to be authorized by law and what the source of the law responsible that's six right so how is the jury though it was other than the closing argument how was the jury advised by the instructions this is a case about her overtaking him and taking advantage of his same thing as a criminal violation and that's the point he was trying to illustrate that here that just because you you fail to do anything say an exam before prescribing a certain drug which is a violation of a medical regulation that doesn't translate to a crime  is something i will have to grapple with but it is wrong and very wrong to get up and say i am not here to convict an innocent person i have never to my knowledge convict an innocent person a united states attorney doesn't know better than that than to done and not just let's stoop to the lowest level of adversarial conduct we can find in the books so i just i mean i don't think this is defensible the only question is is it reversible the judge said that the comments were aimed at the start holding u s attorney's offices accountable for the actions of their lawyers when will be to stop when will we stop having this because it you didn't tell me that this is a lawyer this is his first case or something and so definite i don't know why don't you recount for us just give us a summary of how it is that you believe the evidence was sufficient not only on the controlled substance of part of the conviction but also on the on the on the bankruptcy fraud to tell us how it is in your view whether i agree or disagree that the evidence is enough to overcome any prejudice from the calculating the proof and let me just briefly before the courts of this of page four twenty four of the record the government presented incriminating evidence regarding dr lines competency to control both defendants exerted over doctor lines the records for improperly issued prescriptions for controlled substances and the funds which mr ms bennett sort of tissue slee obtained from the clinics make them see a stake through dr lines miss bennett testified on her own behalf in the jury into a little bit more detail just to remind us about the bankruptcy fraud and exactly what what happened there with the with the with the the doctors medical medical decline they end up bringing in some some other doctors to carry on the practice but it was he ended up not being sustainable the the practice window into bankruptcy and if you know very unusual situation this is sherry bennett was the one who was the office manager in the was one of the issues that the jury x another note asking you know do we do we have to find if she spent in transfer the money or you know well how she handled it but she was she did take it in and that's what made it look bad is that she was taking the money in and put it in a look it appeared she had taken and put it into her bank account that she and the power of attorney in had she had no reason to have to go through all this is surreptitious just to put it in a bankruptcy and endanger talking about what was her explanation trough as to the destination of those sheets she did not take displays what she testified she didn t test but she did not did not take that money that was not his money that she deposit she was raising other money because that investigation had and it and it later was put on the record the first opportunity after the trout we put it in during the sentencing was the first time we had and the judge allow me to proffer that we did in fact raise those issues about the jury instructions during the charge conference but the to the comments the prosecutor made in closing argument it wasn't just that he's making this declaration and making himself a witness but he also told the jury he subpoenaed a very important records and said they don't exist which was not a correct is difficult to do just difficult to be in a position whenever i'm criticizing opposing counsel but opposing counsel did these things he did these things and took away my client's right to be tried on the evidence and the