case number one five gash six one three zero united states of america v stuff an irony or arguments not to exceed fifteen minutes per side mr john patrick grant for the please the court i would like to reserve three minutes for about all courts employ a strong presumption in cases where claims of ineffective assistance of counsel are raised they counsel in engaged in a wide range of professional conduct here dr arnie had to prove that his trial counsel not only engaged efficient conduct which means that it was not only below average but it a reasonable standard objective standard of reasonableness but also prejudice and in this context they dr arnie had to prove that there was a reasonable probability but for the alleged errors that this jury would have found his client not guilty the district court found that there was deficient performance based on several different several different events one was an e mail that seven months before trial there were two attorneys who represented dr arnie at trial steven owens and can't corey and there was proof of that evidence you're hearing that can varney seven months before the trial had seen the e mail to dr arnie telling him  that that witness that dr arnie wanted to testify dr saxman who had previously worked at the clinic that she that she had her office had been searched by the government and that she either was working out a deal or is about to be charged the district court characterized that that was not true and there's no question about that but the district court went too far in characterizing that it's a deliberate falsehood because the only evidence relating to that event was that piece of paper the defendant's the defendant did not call that lawyer as a witness and we know that that e mail did not confuse dr arnie because several months later he was still insisting that she be called as a witness and in fact his after that happened that that was in june of two thousand and fourteen at that point the trial was set in july and later got changed to september and the evidence was that she testified dr saxman testified at the evidence you hearing that she in fact me that's correct now that now the allegation that they were ineffective in failing to interview perhaps it would have been a best practice would have been best practice to interview her but of course that's not the standard the lawyer explained and the evidence is is that through discovery the lawyers knew what her testimony was going to be discovery of who through discovery in the case in the case that is that before trial the lawyers knew what would be that she was giving these combination of drugs and those are the same combination of drugs the doctor arnie gave and why do you think that would not have been helpful well the reason that that the jury did not have to believe your expert testimony that these were near toxic or whatever the language was so if you had another doctor the one who in that prescribe those  not another so called expert opinion about whether the does this were in that toxic and medically appropriate and that that becomes real relevant in the particular standard that the statutory standard it's applicable in this case correct yes the standard is whether the interest of justice so requires a new trial under rule thirty three no no i'm talking about the offense with which dr arnie was right yes correct interview the doctor we already know what the testimony would be well they knew through discovery that the positive aspect that they were both given the same dosage as they knew that but they also knew there was a lot that she was doing in her practice a lot better than he was that she was seeing every patient and that she saw each each returning patient for at least fifteen minutes that she would never have automatically given the same dosage is another no she was not no she was not no she was certainly more serious in dealing with pain medication than dr arnie i don't think that's true she had she was from romania and had come to the country about a year or two prior to coming to the clinic and we had testimony that these that well first of all this was obviously a pill mill clinic the owner had been stopped for dui had a million dollars in his in his car every patient paid one hundred eighty five to two hundred fifty dollars when they came to visit the clinic there was no medical there was no insurance they were getting scheduled to schedule three schedule force every time they get a schedule two there were no refills so they had to come every month paid two hundred dollars to get their medication so they knew that if there was a positive aspect to her testifying that she was giving these dosages they they they knew that was going to come in and they had taken the videotape deposition of the both experts before trial but they also knew that she was giving she was examining each patient spain at least fifteen minutes with them and dr ari wasn't so think about what the cross examination would be and there were in the testified that they had that she spent fifteen minutes with each patient and so here's that here after the fact yes yes you start out by saying that there's no prejudice because they  the jury would have found the defendant not guilty is that really the standard of prejudice i just i thought the prejudice is that it had to have an effect on the verdict which could be hung jury could it not well wouldn't you have prejudice if you were able to convince one jury member not to vote to convict and that may be a reasonable probability of a different outcome ok you are presumed jury is a different outcome right yes so your statement that they had to show the jury would have found not guilty is not correct i think some of the case all says that but i wouldn't be except to your what you're saying judge me all you likely have voted the other way that's all and that's what they're trying to do is they're trying to stop them which reasonable doubt here is actually with a few questions about your strategic argument ak can understand why it might be strategic not to call a witness although whether it could have been reasonably strategic in this case is quite another quite another matter but i don't see how it's ever a strategic decision that it's permissible to  unprepared ok with judge let let's accept that and you know judge to parse certainly thought that not viewing doctors the premise is the doctor saxman somehow would be held up that the jury would see her as appropriate medical practice here's a person who's working in an obvious pill mill they're getting cash people are coming every month and getting cash they're paying cash like two hundred dollars a month and so the owners have been stopped they had a million dollars in their car so there's there's that problem too if she the government witnesses testified that they were either pill seekers or addicks she was the one who had seen the government witness for sed so all these government witnesses that emitted that they were going in there and getting pills and they were addicts and they were selling she had seen them as well so it's very unlikely the jury would see her jury is he didn't even bother to see the patients he was if people were coming through a drive thru window paying their two hundred dollars and getting a script and that's basically what was going and she song and she said that she made a real effort she got tired of conducting detective work she said and so she quit and so the jury would very even if the jury saw her as someone that she was practicing appropriately the difference between how she practice and how dr arnie practiced was was it was a huge gulf there was a stark difference it's very light you know so that the fact that somehow that the jury would reject and she was given these are experts said these were near toxic dosages and so that she was given these exact same dosages and yet she said that she would never automatically honor what a proper physician did and that's what he did and he was just automatically right in the scripts the jury only deliberated for three hours and in most importantly dr arnie testified he had the two rounds of briefing conducting an evidentiary hearing he found the defense counsel made three crucial errors at least three and that those errors undermine the proper functioning of the ever serial process and to judge griffin's question that is the standard here and the judge quoted from strickland on page one of his opinion that prejudice is shown if there is a serious question about the proper functioning of the adversary process and that could be a different decision by twelve jurors or by one juror we give any deference to any of the findings made by the district judge i mean here he presided over the trial i mean he knows the facts and the witnesses so much better than we do with it review it on a cold record but it appears that our review is to know under ineffective assistance of counsel my question is are there any of his rulings that are entitle to deference and if so what are the rulings and what difference do we apply yes your own accord said in munoz in other cases that the proper standard of review is to know but to the extent that you are interested in credibility determinations for instance judge the pars determination of how effective a witness d sacks women would be after conducting the evidence or hearing or make related to that effect that he made a ruling that she would be a powerful witness yes or are after seeing her speak and evaluating what she said and how she said it and to the extent that judge the party has a ringside seat and he's able to evaluate credibility of witnesses and how they would fit in with the evidence a trial there's nothing in munoz or the other cases about how you apply your standard of review that would prevent you from acknowledging that he has a better vantage point on some of these issues  district you're not given any difference in that rather we would consider the record in the evidentiary hearing to know or or is there what's the what's the what's the is there a more complete story i'm not sure there really is what munoz says that in cases where the court is applying the law to the facts or deciding mixed questions of and law the traditional standard is to know that and i have no disagreement with that but i don't see anything in munoz or the cases that it cites that prevents you from acknowledging that the district judge has a better said to be an assessment of the evidence more akin to the questionnaire that although i'm through there probably would based on pure that question i think that's a combination your honor i agree but under whatever standard the court applies we're very comfortable with it novo standard here in the court does not need to give any deference to judge the pars factual findings to decide that is to susan was correct and if i could i'd like to first address the argument that the defense counsel's mistakes here were actually choices the decision to call a witness may be strategic it's it's always an evaluation of what unique favorable testimony can the witness provide weighed against what unique adverse testimony or evidence does this open me up to but there is no strategy in deciding not to call a witness to find out what she's going to say the court ruled in towns worse smith and in other cases that an attorney can't call a decision strategic in hindsight unless the decision unless the attorney has investigated his options and made a reasonable choice between them he can't decline to interview a known and important witness without first undertaking a full and complete explain why you would an interviewer in the first place they knew from talking to dr arnie and dr arnie insisting over time that i want to call dr saxon as a witness i want her to be able to explain why she chose this combination of drugs that the government's now calling a toxic combination i want the jury to hear what she has to say about why she chose that that course of treatment why it was affective in her view and why she continued it more there's not a disagreement about that is there it's my understanding your honor that she is not a board serves certified pain specialist but she has practiced in pain management before and is practicing in pain management  on his predecessor and that the drug combinations that she had chosen then that appeared to be working so it was certainly a reasonable expectation that you would call dr  have her explain why she chose this course and there's no downside to it the only thing that the government points to as a reason not to call dr saxman was that she would testify that she gave  individual examinations personally to returning patients whether they were stable or not and in some instances dr arnie did not he did not personally examine returning stable patients they were examined by a nurse instead that may be a poor choice that may be a poor way to practice medicine with it but it's not necessarily an indication of an agreement a conspiracy to illegally distribute drugs and in any event that piece of evidence came in in the absence of dr sacks men and was commented on by a number of witnesses and was argued strongly to the jury in the closing so calling dr saxman would not have have erred in any unique unfavorable evidence and we've added a lot of important favorable evidence that the jury could have used to vote not guilty i do want to talk about the point that counsel raised about the lie to d  arnie about not knowing dr saxman as a witness as you know from the record he insisted over and over that that defense counsel call her as a witness and in the course of responding that and to those questions and presumably to shut him up about that his his prior defense lawyer told him a false statement of material fact just call that a and i don't think there's anything else to call it there is no indication that it was a mistake or an error it was just law and that was to prevent arnie from continuing to insist that they call this witness that for whatever reason they didn't want to bother to interview and it's that kind of conduct that deprives a defendant of his right to make decisions about his case he has a sixth amendment right to contribute to making strategy decisions deciding what witnesses to call and if you tell him that a witness is not available where that witness can't be subpoenaed a witness is about to be indicted and that affects his decision on how to make decisions in his case then you really have to private him of his six the member right to of effective assistance of coun into a fair trial and that was what was missing here no insoles that this accident was about to be indicted and quite wanted to argue with trial that she wasn't indicted i'm indicted that argument wasn't made a trial could it could it have been made is that a legitimate argument that somebody comparable things is not indicted but i am  inconsistency in theory seems to me that the comment on the government's kind well the government's and you can look at the argument on closing the government argues that dr arnie is here in this clinic this clinic is a pain mill or a pill mill so he must be involved in the conspiracy well that's inconsistent with other evidence that we know is true that dr saxman is not here to be to be on trial that the government has never indicted her government's never suggested that she was a member of the conspiracy i think that's all perfectly appropriate to put to the jury so they can evaluate the argument that the government has made me and i'd be real worried proper argument that's that's an evaluation for the district the argument your client wanted his counsel to make whether it's admissible or not well my client wanted the best defense that he could get he wanted to show that that the government's theory about the circumstances and about the prescription of this particular combination that it was appropriate and certainly not indicative of criminal conduct the government's as well the jury only took three hours to deliberate find him guilty they they want to make the inference well that shows you the evidence was overwhelming the other  is that defense counsel did such a lousy job that it only took about three hours i mean you're going for each way i'm not sure you can take much inference from the time that a jury is out yeah but i think that may help your case that counsel was so ineffective that the deliberation didn't last very long i think that's certainly right and more to that point the the discussion about in their brief they point to a mountain of evidence that's not really correct when you start looking at what the actual charge was this was not a charge of being a bad doctor it was a charge of being in a conspiracy to illegally illegally distribute narcotics there was no explicit agreement that was testified to even though the two other members of the so called experience x conspiracy testified there's no agreement so the government is trying to make an implication from what they determined or what they call poor medical practice that the medical practice is so bad that it just has to be because they're participating in a crime together so dr and the other patients who were not interviewed or called would have counted contradicted all of that evidence and all of that argument if there are no other questions i'll rely on my brief for the other the district court's reasoning that her dr saxon's testimony would have been so powerful because it would have set up because because she had not been indicted then the jury would have thought that she was appropriate that inference could not have been openly drawn the jury instructions say the jury is not to consider whether someone else should be charged they should even consider that so that would have been objectionable if they tried to do that but the reason why the evidence was so overwhelming was  own expert said that it was wrong not to examine when you're given schedule two schedule three these powerful pain medications every month it's wrong he had their own expert admitted it was wrong not to see the patients he was in the doctor on himself that that their expert admitted on cross examination that there was no standard of care dr arnie himself made incriminating statements to the investigators he said he admitted he stayed too long should quit earlier he only he went back because they agreed to double his salary from one hundred twenty to two hundred forty dollars an hour and he he also admitted that he had to figure out some way because there was the patient was so heavy he had to figure out a way to get these people in and out the jury would have heard of and testified they would have said that she was making she would least was making a good faith effort the jury could have the most likely conclusion they would have drawn was well that's the reason she didn't get charge because at least she was making a good faith effort although she was also giving these near toxic dosages dosages to people who came to trial and said that they had met with her print they had these patients had gone to see her before and she had given them medications and they were they were pill seekers and addicts  people they were selling their drugs to other people but at least she did the detective work to try to figure that out and you know the thing is that dr arnie had the chance to explain himself he explained that he thought it was appropriate what he was doing and the jury didn't buy it they convicted him and for that reason this court should direct that the jury verdict be re reinstated if a no further questions we appreciate