versity ready to proceed i am may please the court the heart of this appeal is the government's failure to prove its case a nine shipments of medicine made by an unregistered pharmacy technician scott connelly this justifies a reversal of the nine corresponding mail fraud counts and the rico charges for failure to satisfy its numerosity requirement earlier this month this court touched on these issues of in its opinion and united states  caton the record in this case is fundamentally different than the record there and what supported the firm and in cat and justifies reversal here on the record before this court there is no misrepresentation the government charges the versity with participating in a scheme in which any c c represented that it complied with massachusetts pharmacy regulations the district court's decisions below and the prosecution's case throughout were based on these massachusetts pharmacy regulations but there is no record evidence anywhere of such a representation the government never argued and the district court never addressed whether and he says marketing materials representation used certified technicians meant that technicians were registered on this record it does not in the cabin case wilson and as it appears in this court's opinion listen to a connally customer receive a review any of these marketing materials and did not testify about any communications with any c c here there is no testimony from any connally customer concerning representations about connally's all ten counts even though there was no testimony as to seven of the customs and we did that in the opinion does that in part i rely on the marketing materials that bond  ninety seven with us i about marketing materials making a representation about certified technicians that is in the record here so there were two different issues that but no testimony is similar but the testimony concerns of the things in the company overview was a representation of the use of certified technicians is that testimony present here my understanding was that it was that's correct your honor it is ok with respect to could you just address then ca n as to seven of the connelly counts in cad suggested that that testimony about that marketing material because of its representation about sort of by technicians could have committed the rents that given how widely distributed it was a very infer that it was received by the customers at issue and that they could infer that that was a representation of licensure registration sure so i think to your st question the inference that it was received by the customers at issue i think the records are fairly fairly consistent on that point but unlike in cad and connally testified here that he was certified throughout his certification means registration registration requirements vary from eleven possible response to that is that under cad it is reasonable if one knows nothing else to view a representation that we use certified technicians as a representation that they would be in compliance with whatever requirements a state licensing board required of pharmacy technicians it's  more developed evans than in cad and to suggest that certification might mean something else but the jury heard all that evidence and nonetheless convicted so why wouldn't we conclude that the general term certification  certified in the marketing materials was enough to permit the inference and they concluded that it was intended to be ultimately because i i think the right time you can answer ok i think the record here demonstrates that red to the really disconnected status is because a state registration which is governed by the state and limited by the state has no bearing or input on certification itself which is regulated by a private entity issued by a private entity and can contains completely different requirements so there's just a real disconnect between the two statuses and it would be the extension of that rationale would mean that certification means different things between different states and an individual can be certified like cory fletcher was in new york and practice in new york as a nationally certified technician but did so without a state registration and so it's really the record of evidence here about the differences between the two statuses where state law has no implication on the certification process or what it means that there's just no relationship between them but isn't the implication though that he's representing himself to be certified in the assumption is that he can't legally work in this position in massachusetts which which is that true well i don't think that's the assumption because certification really is it's a spurious massachusetts i mean he would he would not have been allowed to do what he was doing in the state of massachusetts that's correct but but the phrase certified technicians in the marketing materials were literally true and i don't think that assumption carries over the certification requirements to be responsive to the questions i think you're getting the problem is that the marketing materials used in general reference to certified they certified and then define what certified mean it just said certified you're now saying that there is a specific way of understanding  d that would make it literally true but the question is when you just use a general term without specifying whether that can be misleading because it implies something beyond that is the thing that you're saying it might lead one think valid to practice and if you thought that then it would be misleading so what's the answer to that well i think so it's a capitalized term in the marketing materials and that's a proper noun designating a particular particular i status so it's not using the word certified in the general sense it's using the tane men of that status from the peak the pharmacy technician certification board and the there was testimony throughout the record that certification meant something different and in fact it means something different under state law certify technicians are permitted to do more than register technicians so in this case if there is no record of evidence to support that the certified in the general sense it's really applying to that that designation by the pharmacy technician certification board does the make hatten testimony contradicted what point you just made because i thought his testimony was certified li all of this together his testimony was that he expected any c c to comply with the law irrespective of any representation or irrespective of his review of any particular marketing material or representation made there's nothing about his testimony that says certified means registration or that he would even understand that in fact i think his testimony supports what i said before that there are really separate  statuses because he acknowledges that he employed i believe forty pharmacy technicians only thirty seven of them were certified so there's a real difference between what a certified technician isn't can do within the state and just the mere concept of registration and any other questions now counselor thank you the next attorney we're going to hear from is attorney paul kelly to st describe my client christopher leary was the least experienced pharmacist that any c c he was twenty eight years of age only three years out of pharmacy school when he accepted a job at any c c he had no prior education or training and pounding after pharmacy school and before taking a job at any c c he worked for a couple of years in retail pharmacy at walgreens and you know you don't have a whole lot of time and so i want to make sure that we get to use one issue that i want to be clear about what you're arguing are you arguing that he was not aware of the marketing representations or are you conceding that he was aware i could not tell you agree there is no evidence in the record that he was aware of the marketing materials in fact i think the evidence suggests he was had no contact with the sales training or marketing materials and no awareness of the various brochures and publications that were provided to customers to check to make sure that the technicians who actually mix the various stock solutions follow the formula use the correct amount in the proper ingredients which he did by effectively checking these weight slips and if you determined that the formula would simply sign off when mr leary took the job at any c c he took a job that paid him less than the position that he had previously held at walgreens because he was seeking a position with regular hours and contrary to the government's claim in its brief that he derived considerable financial benefit or that he was preoccupied with financial gain in fact mr leary earned an annual salary of approximately one hundred thousand dollars less than a hitter and before he was a salaried employee no ownership interest no incentive bonuses no profit sharing or other benefits you know the government's assertion in on page fifty two dollars of its brief that he earned one hundred and seventy five thousand dollars per year working at is simply false and the reference by the government to his supposed preoccupation with financial gain apparently refers to the fact that he owned a used b m w and talked about his interest in cars with a coworker it's also important to emphasize here that the jury acquitted mr mr leary of being part of any racketeering enterprise a conspiracy and there was no additional evidence apart from that was that was offered to establish the don't think they are in this and because of the diverse elements of we call but even assuming there were inconsistent the other were made the mistake the jury made may very well have been on the quoting on the regal e i understand that and you know he was acquitted of those of those counts but the point that the point is that they offered no additional evidence before beyond the conspiracy evidence to suggest that he was a knowing or willful but to spend in any scheme to defraud and legal well what is that missing with respect to what is knowledge as you said one possibility is he did not know about any of the representations that were made so that would be if that's true that would be something that was missing with respect to the basis for the misrepresentation other words the unit test do you have a what do you thing to us about why the evidence was insufficient to show that he knew what was being said was not true even if he knew it was being well you know again as a as a as the rookie pharmacist at the at the  job with with no understanding of compound ing or us p he was knowledgeable about the fact that testing was occurring regularly he was not provided with the results of tests he wasn't informed with the mail fraud for and in so far as the evidence that supports that no fraud count has to do with a misrepresentation that those shipments were tested when they were not what does the evidence show about when the testing that was supposed to occur was opposed to have occurred no other words in the process were compound and at some point there's a test done do we have anything in the record  tells us whether that testing would have occurred at a time before your client had signed off on the shipment or would the testing only have occurred after in the process he had signed off on  the one example i can point the court to is is is count thirty two which is one of the mail fraud counts on on that particular matter it into it if i could just yes on to finish my answer that involve a shipment of a medication that was sent out to a hospital on august th that stock solution that was used to make that particular medication was tested on august th or at least the results apparently were sent back to any c c on aug th those results were never passed along to mr leary the compound in pharmacies so at the time that he approved this formula to be shipped out to this hospital he had every reason to believe that that stock solution had tested positive lead for both stability and potency the you know people like cadden and annette robinson who was in charge of these matters never convictions and enter a judgment of acquittal thank you my colleagues have any other questions thank you counsel or the dispensing is important as we point out in the brief for this court to understand the way in which orders will process that any c c before you go into that process i just want to understand one legal point read the statute to be guilty of it it's not clear to me you must be the dispenser it seems clear that you have to introduce into commerce in this manner to drug and then a misprinted drug is one that has been dispensed improperly but i don't see where in the statute the person who is the defendant must be the dispenser i would i would direct the court to the instructions they were given to the jury in this case on specifically on pages begins had to dispense the drugs so whatever the statutory interpretation may or may not be on the instructions in this case were i would suggest would bind the court in terms of  instructions that the court wasn't fact saying that they needed to find th something that could be provided by any c c and that was at that stage that patient names were reviewed and confirmed the nd stage would be the  verifications that age some of the drugs were already compound in but they still would go into the clean room to fill those prescription those were for the stock drops and then for the for the custom of the custom medications they had to the compound at the same time but then again that was all done in the cleaner claimer bones it was also at that point that the medication was verified and the record was very respond and the verifying pharmacist wasn't fact the pharmacist in the clean room would verify the medication and at that point the medications were put in a package vials were put in clear plastic bags and they were sent out on the conveyor the right drug in the right amount and the right quantity went to the right customer i suggest that as far as dispensing is concerned the legal and factual issues that were  whether there was a valid indictment and determined that the indictment was valid it noted that the that the district court had relied upon factual assumptions and one of which which was which was a crucial assumption disputed by the government the government stated that that the person in alice step in its position would check the patient names so in fact that's the legal and in factual contention is that the only that she had no knowledge of the names of the patients used as of those six that month even if there is some evidence that she had knowledge of names of yeah that's right knox yes there was absolutely no evidence when she had evidence of names of other other problems with names that's when she was acting in the in the function of it and those were not lives of those these six shipments as they're not related to the six where there was no evidence before the jury that alice that it's or anybody in that position saw the patient names at that point when they were already packaged and she was just checking to make sure the right medication went purpose was contained on the invoice with one exception and that exception is yet she the checker had to look at the plastic bag to make sure that the label on the outside that the lot number on that matched the lot number that you could see on the files inside the bag so other than at one instance every other piece of information was on the end boards which did not contain the patient names there was no our attorney if you could mute your video and audio and we would hear now from attorney goldman good morning your honour's and may please the court ross goldman to the united states and are you ready to proceed counsel i am your honor thank you i'm happy to start anywhere that the court would once but  evidence or a basis from which a reasonable jury could have inferred that misstep and it saw the patient names and then as a secondary matter and as a legal matter it's not clear that that would even matter for purposes of her misdemeanor misbranding conviction so st the factual starter when you say verifier is that the role she was playing with respect to those six shipment that's correct your honor yes that means he was a checker the way he just described it so we would resist that characterization i think because it's a very fire you know she was a massachusetts license pharmacist doing this work in the verification that she was doing was more than the sort of missed ministerial clerical kind of role that my friend on the other side i think it attributes to the label checker the form that misstep and it's had to fill out was called the pharmacist verification check sheet or checklist and so but the function was really to that once she saw the patient name so it would be it would be theirs i don't believe that there's a direct cite that points to these specific shipments there are sites that describe generally the role of what the pharmacy  the name issue is resolved but then talk about evidence that she would have known the patient is there even evidence testifying that she would have known the patient name of every shipment she touched yes because because her role again the pharmacist and there's an example of the nd many exhibit fifteen pages twenty five to twenty six that the court wants to look the verifying pharmacist completed  form is the form that a customer saxes into any c c that contains among other information the patient names and so this patient name form the testimony shows is coupled with the verification that were sent to build up the verification form isn't responsible for ensuring anything about that that attached for more than well again i require you to make any check about that doesn't there's note there's nothing there's nothing on the verification form that requires a do you mean physically coupled with so that it would have been present in her hands that so that's the test that the testimony is just coupled with i think our position is that the inference would be that the form is literally traveled the forms are traveling together through the pharmacy through the various stages of the compound verification and shipping process and that's consistent with testimony from bill fresh in this is that what i've just yes but but what is the evidence that the person who gets the pup will form was responsible for filling out the verification form as any responsibility for saying anything about the patient name that is on the couple forms so at that so at five to sixty six to five to sixty seven is built precious testimony he works for the massachusetts board of registration of pharmacy and he's talking generally about what this final verification process and tails in massachusetts he's not specifically talking about and he sees practice but these practices were mapped onto massachusetts state requirements and what he says is that the final check was was quote required to check that the drug is based on a prescription and again so this testimony that that we heard is that the confirmation process which precedes the checking process that involves filling out that verification form was the stage at which the patient name would be checked and the contention is t step in it because he was responsible for that verification form would not have necessarily been involved in the confirmation process about the name so that when she got the thing it would be coupled with both she's responsible for making sure that verified nothing requires her to know anything about the name at that point that's not her job that's the contention and sure it had to be a prescription which meant earlier there had to be a confirmed patient for it but she says there's no evidence i was responsible for that and didn't do it so what's the evidence with respect to these six months that she was responsible for verifying the name of the patient and nonetheless passed on it when it was a thick tissues name so i again it would be bill frist where he testified that the final check was required to check that the drug is based on a prescription not that that way that you would know it was a prescription she was one responsible for making sure it was won by making sure the name was real that just  means that at the end it had to have a real name it doesn't say who in the process was responsible for that the thing you need to point us to is some evidence that indicates that she was the one who had to know it well so what bill frist is talking about is he's talking about the final check process in other words he's talking about the part of the process that misstep and it's fulfilled with respect to these six counts and he's saying that as part of that process that that person that massachusetts license pharmacist has to ensure that the drugs are based on a prescription does not say that it couldn't have been earlier deemed a prescription through confirmation of the patient name earlier in the process of verification no he's not disputing that there is to be sure that can there's no doubt that the confirm or is on the includes verification of the patient as well as the drug i mean it well so it does it because for us prescription we're thinking about that the drug itself the african nation of the drug itself and the  not valid prescriptions and so i think what i'm saying is that the evidence showed that there were there were checks on prescriptions both at the front and at the confirming stage and on the back end of the verification state which we had out of the  stage and it in he's saying it's required that the drug to check that the drug is based on a prescription drug that's written in the name of harry potter or wonder woman or budweiser is not a drug that is written based on a prescription that would have been something that's part of her the prescription has to be a valid patient specific prescription in other words it has to be the prescriptions being written for an actual person who is going to get the drug and misstep it's concedes on page eighteen of her brief that these patient names associate with these six counts are in her words manifestly fictitious and so what what i think if you marry up billfish is testimony with the fact that the prescription order form that has the names on it is in is when it is traveling with the verification sheet combined with earlier e mail or are unrelated counts you know kind of panos saying i i am not going to ship this until the patient name issue as a result i think let creates an inference the question again on sufficiency review could any reasonable jury have she could not have relied on the we said one through the earliest stage of any species process well i don't think it's exactly that's exactly our going argument is a bit more i think straightforward in that their journey could thing that she saw these prescriptions saw saw the names and would have immediately known that they were fake and that therefore the drugs were disfranchised i do want to make the legal point though that because again she was convicted only of the misdemeanor offense which is a strict liability crime even if she did not look at the prescriptions she still would have been properly convicted of her role in dispensing these drugs  that the statute doesn't require that the jury asked the judge that the jury instructions did require her to be the i mean it depends on what part of the jury instructions you look at your honor on page six thousand and thirty five the court identifies the three separate instruction that then said that they had to find she was the dispenser so well what that separate instruction says is if you find a step it's guilty of dispensing a drug interstate commerce without a prescription that instruction doesn't actually say you must find that it's the individual who did the dispensing in fact the clearest articulation i think of what it was that this step and it's had to do is on page six thousand and thirty five where the court lays out the three aliments of the offense that the government has to prove beyond a reasonable doubt and none of those so i think the supreme court's decision and daughter like answers that question and the court and daughter which makes clear that liabilities enclosed on those is imposed on those quote with a responsible share in the furtherance of the transaction which the statute outlaw so if you were to imagine for example you know a recent high school grad who's a shipping clerk who takes the misstep and says ok these are good to go put tape on the box give it to the u p s the u p s guy for shipment maybe that high school grad who's literally taping the and handing it over to the u b s guy doesn't have a responsible share in the furnace of the transaction or the supreme court order which elsewhere framed it by ability is imposed on those who at least have the opportunity of informing themselves about the existence of conditions that the statute outlaws maybe the downstream shipping clerk who merely takes the box and hands it to the delivery driver doesn't have that this step in it's plainly dies she's a massachusetts license pharmacist who's who is rare and this process consistent with state law is to make sure that that misprinted drugs are not being introduced and interstate commerce so there are to be sure and this from what may clear daughter whites at the strict liability crimes impose can impose hardships given that they can be let its being a massachusetts license pharmacist was well within the wheel house of what this statute is as trained out preventing i know that my time is starting to run i would like to make just a couple of brief responsive points with respect to the other clear that scott connelly maintained his national certification so this was not a new piece of evidence before this jury it's not a new piece of evidence before this court and in particular so the court has them at pages forty six to forty seven you know we would certainly agree with the position that this court statement page fifteen of its opinion very caton that a jury could infer from the marketing materials that this was a representation about state registration statuses is a sound one that same evidence i want to make with respect to mr scarcity is there was some confusion amongst the pharmacy technicians here about what to call the the requirement the state registration requirements so a couple of times it was referred to as the that where i think it's important not to rest so literally on the meaning of the word certified as my friend on the other side would do and the question as as i think judge karen intimated is there's really could any reasonable jury haven't heard from this and from from this responsive points with respect to mr leary's argument this idea that he had no idea about compound ing or no understanding about chapter seven that seven was massachusetts pharmacists are required by law to comply with chapter seven hundred and ninety seven  mr leary was in massachusetts licensed pharmacist he made the point that he had no idea of the marketing material what is the evidence that he did so it would be so so the evidence would be an inference drawn from the fact that th make sense and it makes sense that from which to drink and refer and that did he at his level would have been aware of what representations were being made to customers so that there is no i don't again there is no direct piece of evidence that shows that shows that possible but you haven't that he would have no it makes sense for someone at the level of cad to be responsible for that marketing strategy why does it make you nervous to say that a person that this person will would have known of the marketing strategy knowledge of the scheme the scheme has any knowledge of the marketing what's the evidence that he had knowledge of the marketing strategy it would be it would be an inference that the jury would be entitled to draw from a couple of pieces of evidence one is the overwhelming extent to which any c oriented their entire business around representing compliance with seven hundred and ninety seven dollars plus the idea that he has a massachusetts license pharmacist would have known that he has to comply with seven hundred and ninety seven dollars plus the idea pivot you know his his financial motive here mr larry facts are evidence on this but it's strong directly from the trial transcript at page eight you know cho h you know to date you know three both about his salary and that he was preoccupied with articulation of this the jury what it what this court would have to conclude i think is that the only reasonable inference that could be drawn is that a massachusetts license pharmacists and this high risk compound in the area would have had no idea that the pharmacy was representing facility i think that's right and i think it's important to remember too i mean mr larry you know represents that he is that he was the a rookie pharmacist and that he would use this idea that he was sort of naive and what not but but it in that in a high risk compound environment like this the pharmacist is not a eight bit sort of side player and what's going on i mean there are consentual with respect to these particular shipments there was an argument made to us that the evidence would have been lacking as to these particular shipments that he would have known that they were made in violation of u s peace seven hundred and ninety seven because of the timing of when the evidence of the test result would have come back either a day or two some day perhaps even the same day i don't have it exactly but no more than two days after the drugs were made and when they couldn't possibly have been tested st and so that's that's the inference here that it that's how the jury could after i think readily that came back and showed that the drug was not contaminated final drug a two points about that one is any c c had a practice and this is in our brief of sending test samples that were too small and that therefore made it hard to small doesn't matter the fraud here with respect to mr leary was not knowingly shipping contaminated drugs the fraud was knowingly shipping drugs without them having been tested as sterile st another point that i just want to make three of the joint appendix and that robinson is testifying and she's the person at this point was sort of in charge of the cillit taping and he's testing program and she testified that she quote always told pharmacists when a non sterile result came back and so those results went back into the clean room the jury couldn't heard mr laird you know if even it mattered and again i don't think it does because the theory of the fraud exactly the theory of the fraud that this court and the barry cadden case of how the pay does nine hundred and twenty one