he's number fifty one eight six zero united states of america versus wilfred griffith oral argument not to exceed fifteen minutes per side brain to you donna robinson for the appellate you may proce add a couple of remarks in addition to the information that we've submitted to the court in the pleadings it's our position that the that section sixteen to fifteen of the public health code in the state of michigan does permit a license  issued to delegate certain scopes of authority to people who are acting under his or her care and that rightly or wrongly mr griffith believe that the delegation of authority that had been entrusted to him by dr smith and dr  permitted him to engage in much of the conduct that was at issue in this case and of course as our ultimate contention that the district court abused its discretion in not allowing mr griffin the fence attorney to present evidence of both the statute the specific statute that involve the delegation of authority to the jury so that the jury could consider the relevance of that information to his intent was he allowed to present evidence but just not the statute language itself he was able to present evidence in the form of his own testimony judge moore and while that of course is one piece of evidence and therefore not a complete denial of his right to present a defense the statutory language itself i think would add additional credibility i suppose judgment right or wrong was contemplated by michigan law i think the jury was left to evaluate that information in a vacuum and really without the benefit of understanding that you know even the legislature had weighed in on this very question to some only thing that he was not permitted to introduce as i understand it was the actual language of the statute is that correct that's correct judge moore i want to just respond really very briefly to a few of the arguments that the government raised and it's particular and as a result of that i believe again it was absolutely his his right under the constitution to present a full defense of his perspective on that question it was also very central to the government's theory below both in its opening claim and its opening statement on january twenty seventh the government's attorney emphasized right out of the gate that mr griffith was never licensed that he was never allowed  to practice in any capacity and that he played doctor and let all these patients to believe that he was acting as a doctor and only as a doctor so it was critical to their theory of the opening and that framed the government's positioning of the case to the jury and then again at the  closing arguments that took place and the court can find that those transcripts and record number sixty four page i d number roughly six hundred sixty six the government again reiterated that thing over and over again mr griffith was completely playing doctor this was totally fraudulent on his part and there was no justification for that so again i think listen even licensed as a physician's assistant he was not your honor and that is he had no  credentials they didn't would allow him to do what he was doing but moreover wasn't he wasn't there evidence of totally fraudulent activity wholly apart from whether he thought he could do this doctor and well there i mean as i indicated at the beginning i absolutely recognize that both from the standpoint of the abuse of discretion standard and the harmless and they are harmless error analysis we have a difficult case here but having said  i think on that again that central question of his intent separate and apart from whether or not the other activities involved were technical violation he think he had to believe that these things were progeny and i believe also that in  i think in judging a defendant's right to present a defense it's tempting to evaluate the merits of that defense and whether or not it's you know it's completely strong and it's going to absolve somebody of responsibility but at the end of the day i think those are jury questions and those are whether or not he would have prevailed is sort of secondary to the fact that at the end of the day it was his right to present a complete defense to to the jury below and so that's the basis of our argument so you have some sentencing issues as well correct i do your honor i have essentially don't have much to add beyond what was presented in the briefing below i think if there is one that is most prominent for the course consideration is whether or not mr griffith plea a minor participant role or something more significant than whether or not he should have been given a reduction in response to that but must the court has any other questions i'm happy to rest on my plea to the remainder of the argument thank you thank you may please the court for the united states a defendant who is offering an advice of counsel defense does not get to introduce as a separate trial exhibit a statute or any other legal authorities cited in that attorney's opinion that was true in this court's disses decision and hatchett it remains true here at trial the defense was not that the defendant relied on the text of the statute the defense was that he relied on the attorney's opinion which cited the statute that was the basis that the defense counsel put forward at the motion hearing and i'm referring to page one five nine eight and one five nine nine of the record defense counsel proposed asking whether the defendant received an opinion from his attorney and whether that opinion listed the name and number of the statute that's reliance on the opinion not reliance on the text of the statute the defendant's written motion shortly thereafter and that's page six zero three said the same thing and the district court's opinion if the court looks at it tracked that analysis the district court looked first at whether introducing the statute would be confusing and then only addressed the theory that defense counsel submitted below which is the legal effect of the statute the district court took defense counsel at her word took the defendant at his word that he didn't rely on the text of the statute was only relying on the attorney's opinion and that's a point that's important for several reasons first is under this court decision and hatch it in hatchet if the court recalls the defendant presented in advice of counsel defense and sought to have the attorney testify about the defense stronger and two as is true here it would have been confusing introducing the text of a statute text of a case text of any legal materials as an exhibit to the jury is going to be confusing let's suppose hypothetically that in tourney is giving advice based on a wholly erroneous absolutely crazy theory would that be  situation where there should be an exception where one or the other side should be able to introduce what the what the attorneys basis alleged basis for the attorney's opinion is to show that it was wrong for the defendant to rely on that attorney's opinion probably not judge moore with a cabbie that i'll explain and that actually supports our argument here because advice of counsel does not depend on whether the advice is good or bad it depends on whether the defendant disclosed the relevant facts and then reasonably relied on that advice i mean devices often bad that's why the person who takes it up and up with the word defendant next to his name it's usually bad advice so it's whether he relied on that advice that's important and not it's if the shoe were on the other foot here let's say he got an opinion and that opinion cited court or the case in that case had  misquoted that case used the word not or didn't use the word not which in a way that completely changed the meaning of that case the government went then to be able to introduce that case as a separate exhibit unless for instance the defendant directly we had some information the defendant knew about that case or had some other evidence that he could not have relied on that opinion so the shore on the other foot here the government would not have been able to introduce the statute either and that's important because it supports the district court's analysis here a exhibit was not relevant and why was properly excluded under rule four hundred three because you have no relevance whatsoever balanced out with confusion these jurors they're laypeople they're not attorneys introducing one state statute in a medicare fraud scheme would have been unduly confusing and so was properly excluded under rule four hundred three those are two separate reasons right irrelevance would have been sufficient and  balance it's and the balancing that correct that that's correct all right or we don't need both of them it would have been irrelevance is sufficient to rule for one in four hundred two and then even if the court were to assume somehow that there were some minimal relevance th we come into play and that the risk of confusion with out weigh it and that takes me to the next point just more you asked whether he was permitted to present his defense he was permitted to present his defense he was permitted to testify about his reliance on advice of counsel he could have introduced the attorney's opinion had he been willing to offer more than page two of it and had not affirmatively withdrawn it as a trial exhibit so he was permitted to present his defense here finally even if this court were to find or assume any error the evidence here was overwhelming the two people who were involved in setting up both sets of fraudulent companies here testified that both schemes were entirely illegal and this defendant cheated on one scheme to help another scheme because he received kickbacks from that later scheme that evidence by itself what was quite damning with or without the statute you want to know anything about the senate oregon i don't have anything to add judge sun tell us the court has any questions i'd be happy to address those if there are no further questions then the government would ask that the district court's judgment be affirmed thank you and six zero six the defense there is asking not only to allow the advice account advice of counsel defense generally but specifically to allow the presentation of the statute and so to the extent that the government is  using its briefing an argument to suggest that there was a waiver here and i just want to make that per pack clear purpose of the record thank you you're saying that i didn't quite get all of what you said you're saying that this part of the record will show that the