introduce prescription records of simply all of the doctors a one thousand patients to then turn around and claim that the only relevant or admissible evidence in this case related to fourteen patient witnesses they identified or select few patients they put on a chart or a graph admitted into evidence while the doctors were accused of exclusively prescribing illegally that should have been allowed to present favorable and admissible evidence to prove an rebut the allegation that they were not  primarily or essentially a pill mill some of the most powerful evidence in this case were charts such as government's exhibit ten daschle row which was a comprehensive chart of the doctors many prescriptions to all their patients  government's exhibit ten dash twenty five which was the top twenty five patients of dr were reviewing this issue for an abuse of discretion the trial judge didn't permit good patient testimony and evidence to be considered by the jury right well that's part of it is under the rules of evidence yes but under did find that there was error and in applying it under a standard applying the federal rules of evidence when we find it harmless in this case if the evidence was otherwise overwhelming your honor that they have been in this case was not otherwise overwhelming giving the totality of the facts and circumstances in this case referring again to the charts those pervaded this case and they were devastating to this case for for two reasons one it presented the p t p evidence which i'll address later which made it so much of the  exhibits that explore at the government relied on in their case and to the government use these charts to tell trying to help two stories basically they use charts like tendentious zero to show prescriptions of all the patients and imply that all the  patients in prescriptions the doctors were writing were illegal or bad or abusive and then tried to limit the doctors to fourteen or twenty five or twenty eight patients through the other exhibits and now so counsel didn't wasn't the government's position in the testimony that there was a certain percentage of the patients that were over prescribed medication yes your honor there was testimony that of an estimation of wasn't that their argument says well potentially but there were also charges and made the argument of that if they were primarily in essentially a pill no they tried to but why didn't you object in closing arguments when the government might this  called fourteen patients in comparison to defendant only calling a few i can't speak for why we didn't object to that case and maybe we should have but when still the you know what the government meant by that the implication was that we interpret it is that we either couldn't or just didn't call more patients and we should have been allowed to do so the appellant's were allowed to call the patient witnesses they chose or identified but we were limited to only those patients they identified which essentially empowered the government to craft our witness list the government was able to call patient witnesses that complained of the treatment from the doctors yet when dr katz could not call his own witnesses like michael tiller  i told you that right from the start and it has always been our contention that a majority of the patients that went there had legitimate pain needs and were need of legitimate government conceded that most of the patients were legitimate right they made that argument yes your honor but they presented evidence obviously of only negative aspects of the case and we believe we should have been allowed to put on evidence like michael tiller to show that these doctors were practicing real medicine providing real relief to rebut to as is hern discusses in one of the circumstances to shed the government's arguments and evidence in a different light we should have been provided the opportunity to provide a different light that this was not essentially and primarily a pill m practice is not a basic character of the practice necessarily it shows evidence of how these doctors conducted their clinic that they were operating within the bounds of the law that they were prescribing for legitimate medical purposes and within the usual course of pr substandard treatment was there and then you had two employees i think that testified about certain percentage of the patients being overprescribed and one of maybe even said they looked like they were over call dr greenberg and doctor for a they also presented many of their patient witnesses either patients or family members of patients to testify about their experience to provide a backdrop or a basis to say dr couch was treating me outside the usual course of professional practice if there is a problem with dr altman's testimony is there sufficient testimony otherwise for us to conclude that it was harmless if dr altman's testimony was allowed to go in that it really didn't make any difference no your honor because again when looking at the entirety of the case we were unable to present the evidence to rebut the government's case they were able to name and identify a narrow universe of patients to to assess or address this practice and we weren't allowed to rebut that even though they had we they open the door through bringing in all the prescriptions and essentially making all the patients fair game they that we were then restricted to these certain patients and we couldn't call other patients to to rebut the view or tell a different story of how p s a was a legitimate practice and they were operating as as criminals that this  the prescription drug monitoring program data that was that yes wrong and if we look at the data is it just limited to data reflecting prescriptions for the twenty eight patients twenty eight or fourteen patients in this case which you could argue that the jury would make that argument then you make that argument to the jury yes you are we we did but the argument in response to that is the government opened the door using this evidence we should have been able to because they are basically putting all the prescriptions and treatment issue through that argument evidence we should have been able to rebut that by naming our own or bringing our own patients and i  presume did you did you raise an objection to the government's introduction of the statistical evidence yet we have jet to from the forefront of all p d p but you haven't raised that specific issue on appeal correct it's only sort of the back end problem that well if they got to do it we should have gotten to do it yes your honor of basically they introduce this this evidence and we should've been able to reply in kind and i assume that your objection forgive me that i don't recall but i assume that your objection to the statistical evidence was this is irrelevant to this case is about a discrete number of people right you are basically arguing that they can't have it both ways that well yes so so forget about the backend the problem the front end problem they should be able to bring in their statistical evidence in the st instance you said it's irrelevant basically what they are saying now in defense of  has lack of trustworthiness on the face of the report it says the department of health does not guarantee these records but is that is that a lack of trustworthiness or just a that's a neutral on trust with us we're not going to say one way or the other whether it's trustworthy just a disclaimer right that's not that's information it would be the same as her saying this is what it says but i don't know if it's true i mean i think we would find that that that would have some lack of trustworthiness to it and additionally the pharmacist statements were not adopted by the department of public health or relied upon as the case law shows to make them business records of the department of public health they didn't they didn't issue any payments make any determinations or take any action there was no reliance just a collection and providing it was a cond may please the co work counsel i'm going to address the couch issue about the exclusion of good good patient evidence but particularly focus on the exclusion of the undercover videos relating to dr ron which are basically an issue in of itself and then also going to address the issue about senate saying which judge judge kugler questioned mr sewell about in the government brief a stay the interests of justice are served by putting the truth before the jury in this trial the government prevent perth prevented that from happening in several ways st despite the sweeping rico in conspiracy allegations they basically limited this case to thirty seven cherry picked patients out of over eight thousand motion in limited it was expanded to exclude these undercover videos of dr ron two agents posing as patients were sent to see dr ronn during the conspiracy period expecting to people scribed eight he received a thorough exam of detail a detailed examination and and history he was told you needed a medical justification for opi opioids and none existed and he was given a non controlled anti inflammatory  patient mcdermott saw dr ron during the same period with similar complaint levels he actually had a medical justification for opioids he had a shoulder that wasn't fused he wasn't real he didn't was not prescribe questions that what you're telling us is in the record with regard to your client doctor run is that i promise yes yes no dr greenberg testified against him as far when his patient is not right creator it was the only witness on for substance of counts greenberg after his testimony said his own testimony was unreliable the government put that into motion yet they still argued about greenberg's reliability in closing it was basically a patient of dr couch and her opinions basically were refuted in the evidence she missed she didn't have all of the facts from the various charts and the two patients she discussed were there's a question about those had these videos been presented it would have resolved all those credibility decisions in dr ron's favor because that's what the jury is being asked to decide here is it not a sign is it not the same thing then i ask about before worse makes equally just good cared for evidence with regard to some of the patients well you would have argued it that you know my client comply has good character because look they eat he did it correctly there are these cases i know what you're what your honor is referring to but there are cases like riley and sheffield where other instances are needed to show intense particularly in broad cases of conspiracy now when it's a subset of a count like a drug deal or a bank robbery i understand that reasoning but in a broad conspiracy count that type this type of evidence to show somebody is intent where they limit it to the worst possible patients they could find out by doing that why didn't you object or you're the counsel that was representing him when the government made the that's excluded any closing argument the given says there was no objection there was no denial that those drugs were in there that was not that was not objected to in closing argument either yet this court reversed that on a fairness basis similar to what happened here you can't get a ruling to get out of it and then criticize the defense for not bringing it in that's that's exactly i'm stan that my question is why didn't you pointed out to the district judge at that time so hopefully the district judge could have had an opportunity to fix the issue let's have a difficult to decide whe in closing but that was it was not objected to unpack it and that didn't stop the court phone from reversing i wanted to mention the case of south carolina the homeless which builds on that reasoning of her and that's the case where the supreme court a conviction for murder and they basically said that by evaluate because the defense was not able to show someone else committed the murder by valuing the strength of only one party's evidence no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt that's exactly what we had here they presented all of this that this cherry picked evidence the defense was about a broader conspiracy the defense was not able we had an expert that was going to say he looked at fifty patient files and he and he couldn't identify one prescription that was written outside the usual course of professional practice i want to turn to send that issue about the videos requires reversing all counts on dr bond because his credibility was called into question by not having those admitted the sentencing was based on phantom testimony i wanted i want to dress what your honor's question was about the fifty percent testified parker and palmer their testimony was fifty percent of the patients either were overmedicated or appear overmedicated the prosecution represented at sentencing i was i went that's the st time i met d on the testimony was that fifty percent of the prescriptions were not written for a legitimate medical purpose all based on that one cryptic thing about over medicated or appeared over medicated the judge said oh i recall that testimony and based on that she extrapolated from total prescriptions she took ten eight percent of total prescriptions we we cite she a th circuit case which basically makes the distinction when you're dealing with doctors who are distancing legitimate drugs versus street drugs you have to have reliable evidence and you can't extrapolate just because some may have been unlawful all or others were unlawful that's what exactly what happened here it was phantom testimony that was used as the basis for calculating the drug quantity all they did was at best prove about sixteen for scription from the indictment we make the argument and also i point out the case frazier even in street drugs this crime court requires more than just cryptic testimony to base a drug quantity calculation could the dead judge also have relied upon the other witness that testified about the over prescribed medication patients that were overprescribed medicine they said they said over medicated which could mean a light slightly higher dose it could mean to sit for a longer period time it doesn't mean that not not for a legitimate medical purpose both of those witnesses palmer said the p p s a provided good patient good quality of care to all patients parker the other witness said she never did intention anything intentionally wrong to her patient care reserved some time for rebuttal and  so they say appear overmedicated these are medical professionals they're nurse practitioners they're not just lay people off the street so they're trained i think to recognize when someone is over medicated and if you are over medicated that is by definition taking medication that is medically unnecessary something that is more than needed is unnecessary so i think that it's not a leap from over medicated to medically unnecessary but moreover the district court didn't have to go all the way to that fifty percent figure to get where it got in the sentencing guidelines ten six percent was enough and the court i think made conservative accurate fair estimates as this court requires and bar some of the issues i think to purchase a case from the th circuit both that and rosenberg cited reply neither involved conspiracies they're both straight up substantive counts so i think that's different in this case also you know forging prescriptions is outside the usual course of professional practice there's testimony that palmer forged over twenty five thousand prescriptions for controlled substance what was the evidence with regard to the percentage of patients that were over prescribed medication that were prescribed medication when they either didn't  you said fifty percent if we don't buy the argument of fifty percent you said the judge only had to come up with ten point something i say let's to equal the guidelines so that the senate's would be within the guidelines right to get to the guidelines range that by the tens and pose it this is the other man was substantially below the guidelines range and our court issued a key statement that it would have been posed the same regardless rock art so what do you believe with regard restitution for instance other things what what was the judge thinking what was the percentage that the judge actually ended up thank you so i think so the restitution of a little bit different the way they calculated it but you know it's not just medically unnecessary right it's medically unnecessary or outside the usual course of professional practice so you have this fifty percent figure on the medically unnecessary then we have the twenty five thousand dollars forged prescriptions we have all of the prescriptions for subsets and ab strolled that were issued based on financial incentives which is outside the course of professional practice and because those are fenton all they count very heavily towards the guidelines quantity  i think that those things alone would get you to the ten point six percent i haven't broken out the math precisely because that wasn't their precise challenge but if the court ones we could go back and do that well i wouldn't go ahead and judge i'm just i wouldn't a district judge need to tell us what the district judge was thinking so that we could write what did so i think what she was thinking was that there was testimony that at least half appeared overmedicated she says i remember that testimony she sat through the seven week trial she was exposed to all of the evidence i think she was in the best position to make the determination about how much illegal prescribing was going on and to say that at least ten percent of what passed through this clinic was illegal or inappropriate either financially motivated or medically unnecessary is not a stretch based on the evidence from all of the the patients and their families and the experts and the clinical staff you know think it's  so i think that also you know it's a conspiracy dr ronn wants to say well palmer was only involved in doctor kept his patients but it's a conspiracy so they're both liable for the whole thing and so just i mean there's sort of two things going on here one is the amount of loss and arrows are a drug quantity and the other is the restitution so so far i've been sort of tracking yes yes yes a lot of testimony the other half is going to get you north of ten dollars but how about restitution i mean i recognize it's only going to be a reasonable estimate but the math is pretty fuzzy it seems to me on the restitution they're talking about the turf prescriptions only so that's only the high intensity  they say ten they take that total number subtract fifteen percent because the testimony from a couple witnesses said up to fifteen percent of the patients had cancers that would be on label use and then divide the remaining amount by half based on this  at least half statement i think that's actually an underestimate because of the financial motives which infected every single one of those prescriptions it just that the reason i'm asking the question is that it seems like if your challenge is to get north of ten six then you've just got to show like lots of badness and we're north of ten six if your challenge if it is instead to put a reasonable estimate on a number it just seems like when we're relying on this little bit of testimony about half what we're overmedicated it's just kind of like it feels awfully squishy so i think for that you know we're talking we're talking about have two different charges right so for the guidelines thing we're talking about the drug quantity right  for the drug dealing and for the restitution we're talking about the fraud ok so the fraud to the insurers i think both hinge on the half overmedicated thing but right kind of so i think that the half overmedicated thing as to the fraud is actually a vast understatement of the amount of fraud because there was a lot of testimony that the insurers weren't going to pay for these prescriptions if they were off label because they were so expensive and the that's where you get the fifteen percent so we've excluded the fifteen percent everything that remains is off label which is arguably fraud taking it down by when you say wait wait wait when you say arguably fraud i mean is is off label necessarily fraudulent so there's prescribed off label absolutely and it's not illegal and a drug distribution right sense the question is whether they told the truth to the insurance companies about that and we had these instances you know particularly about burns i v and barber where they falsely certify that the patients have cancer in order to get the insurance companies to pay for it and so i don't have the page right in front of me at the moment but the there are  in our brief where the insurance companies said that they would not pay for the off label usage but there was some conflicting testimony going back and forth about that from different  the so i think there was a basis for the court to conclude that those turf prescriptions were inappropriate that the charging of the turf prescriptions to the insurance companies were inappropriate and the kickbacks again i think that affects everything so every single subsets prescription i think could be say seen as fraud because it was prescribed on the basis of their financial incentive not on the basis of patient need can yet the way that you get to this figure of fifty percent or whatever you rely on that to nurse nurse practitioners and the experts and then you say the insurance records showing the overprescription are off all flight will prescriptions if you take out your experts and the jury doesn't believe the two nurse practitioner evidence do you have to support the conviction to support the conviction yes and i said we're not talking about sentencing anymore going back to sufficiency to support the convictions with three different experts who testify each about government objected to the defense being able to ask a question in from two thousand to two thousand and fourteen or some some period of time approximately ten to fourteen years the government had specifically i believe have paid that expert three hundred and twenty five thousand dollars during that period of time is that right am i missing that that's close but not quite so question was two questions so st when you work for a government how does that work you set up these contracts that authorize an amount up to a certain amount and then you bill by the hour for your work done yes that's correct next question and over that period you had total contracts of up to three hundred and twenty five thousand dollars up to our contracts of three hundred and twenty five thousand dollars yes not up to what the st question is what is the contract the contract is up to an authorized amount you know so that the contracted amount is just a ceiling how much money did she mike during that period of time twelve years it's not in the record ok because the judge prohibited the defense from asking that question knowing i had because they never came back and tried to ask the specific question they ask the bride ceiling question they didn't ask the what did you actually make question all right so that number you're saying that the district judge the ruling that i read was not sufficient detail to defense they were not going to get into that is that what you're telling me the specific question that was asked was about the total contract value that witness i don't think it was an abuse of discretion your honor because the relationship was well established that were laid on you for one year for the past year but also over the fourteen years the period that she had worked for the dea or for the government as a witness it was established that this had been a long term relationship and bias that is if you look at the collins case that they cite in reply you know the bias is about the relationship it's the idea that the witness is going to color her testimony to get future jobs anything here in the judge said it or something what did the jury not have a right to know that certainly not over the defense counsel's objection which was dr house said you shouldn't do anything about this dr ronn didn't make an application that you should do something about it the court affirmatively found that there was more than sufficient evidence that he was competent and said let us know if anything else develops and nothing else developed nothing came of it or my final question to you and then now i'll be quiet why did the government make the statement in closing arguments we called fourteen patients in comparison to the defendant calling a few why are we the defense said it made arguments through their case that they should be able to call other patients to show that this isn't something that every patient and i know there was testimony there are your position the government's position was that a lot of the patients and maybe even most of the patients were were treated appropriately but why did did the government make that statement in closing arma what was the purpose of the study so the purpose of that statement i think you can see this in the rebuttal closing obviously an off the cuff statement you can see in the next line where she says take ben brown which is one of the charge patients that the defense called in their defense and then she talks about what happened with mr brown who mr brown said dr justin was his just and that's the nurse practitioner and in context what she i think the fair way to read it is that of the charge thirty eight dollars patients or thirty seven dollars if we want to quibble that we called fourteen and they called a few so that universe that we're talking about but that's not what she said that is not what she said and i understand it was in say they should have been permitted to call these other witnesses other bad other patients and whatnot in that it caused harm when when you objected to government and the court didn't let them put on this other testimony and then the government knowing that's their position objection makes that kind of statement in closing armitt do you really think that's fair you know i don't think it changed anything about the color of the trial this trial went on remember for seven weeks throughout the trial their statements by the government in opening in closing throughout with the witnesses that you know many many of the patients were legitimate that they had legitimate needs that they came from that is just the tournament treatment that they were treated properly so that i think was well before the jury the charge from the just to court the jury instructions were very specific about the government's burden i don't think there's any reason to think this changed anything and most importantly under rule four hundred and three the court has broad discretion the district court and its rulings can only be overturned if they are unsupportable and i don't think this ruling was unsupportable given the breadth of this trial and you know she was there she saw she knew what the court was seeing or what the jury was seeing what was going to be confusing what was going to be a waste of time and i don't think her rulings are unsupportable you know think about it they want to say that the government crafted the witness list by making this list of patients the government always crafts the witness list when it makes a charging decision just because somebody robbed five banks they don't get to come in and say well i passed three other banks today and i didn't rob those that's not relevant i agree one hundred percent my problem is that the government appears to have made the issue if you will to be held against the defense with my made the statement we call it fourteen how many did i call i understand john and i agree in an ideal world that statement would have been made but the fact of the matter is that in the course of the trial i don't think there's reason to think that that changed anybody's impression about the on with the rest of your pulling off that for a three point i just want to point out that in homes versus south carolina the supreme court explicitly approved a rule for three as a limitation on evidence so that's you know we're talking about her and in this idea of what the standard of review is it's abuse of discretion the rules of evidence govern and the district court here did not abuse her discretion i'd like to talk briefly about the p d m p records it seems that if the court had any questions about the business records or otherwise the hearsay aspect of that ok it doesn't seem like to and i wanted to point out one other thing about dr greenberg this idea about that he called himself unreliable at the government called him unreliable that's not true if you look at page one thousand and seventy of the record as a clarification that he says he did not use the word unreliable so that's not what happened i just wanted to be clear about that on the expert witness you know it is her miss the substantive counts that she testified about dr kelly or not dr kelly but the undercover officer kelly you know he came in he presented the video evidence he testified i don't think there's any reason to think that they needed the experts testimony to overcome or to convict on the substantive counts the fee issue you know this relationship was before the jury and it wasn't they didn't bring this up in closing argument even to argue that she was biased so i don't think it was something that leaves that that the missing question leaves a significantly different impression on the jury than what was already in the record and that's the standard  i'll try to address a couple of points on the sentencing issue about overmedicated that the testimony was over medicated or appeared overmedicated it was represented at sentencing to be something entirely different that half the prescriptions were written not for a legitimate medical purpose there was no testimony that said that it was they they extrapolated from that over medicated testament they could have flesh this out as to what it meant i suggested it could may mean slightly higher dos longer than necessary does there was testimony throughout this trial there is no medical consensus on most of these things to use that extrapolate ten prate point ten eight percent of total prescriptions runs counter to this court's decision and us rephrase your it runs counter to to chew b and it runs counter to any notion of fairness she talked about greed and mention ab stroll she's completely wrong in sight in pages five  that another dea agent that testified said that the x their own experts said that that's off label use these doctors believe that that that was the best pain relief for breakthrough pain of any kind cancer or otherwise they percent of total patients that had cancer after one such as were prescribed only to seventy seven percent of those if these were greedy doctors they could have easily gotten approval for that they didn't do it because the many of the cancer patients just didn't need it they used coupons to get frame free medication to too many patients that couldn't afford it she talks about missed she'd reppert she may makes a reference to burns burns was approved there on the dea agent there was no false information provided all of the all of the credibility decisions would be resolved in dr ron's favor if the undercover videos that they obtained had been played for this  command two things to the panel here one look at those videos and you'll see a skilled professional nationally recognized pain management doctor and nd listen  his sentencing and you where you will also see that he's a brilliant county and his doctor that does not deserve to have a two hundred and fifty two month senates that he served exactly thirty months of already please reverse his conviction thank you thank