good morning and may please the court the jury instructions in this case are so fundamentally flawed that none of mr area lays convictions can stand now there are errors and the jury instructions for every single count in the indictment but i'm going to start with the drug counts and that is in part because the money laundering counts rely on the drug counts to establish that there were illegal proceeds what standard o were using on the your challenges to the jury instructions there are different standards of review that will apply to different instructions your honor as far as our main argument that the jury was not a pharmacist must fill the prescription knowing that the physician issued the prescription outside the usual course of medical practice or without a legitimate medical purpose your honor i believe that will be reviewed for plain air which i think we can clearly establish however our contention that the court erred by instructing the jury that good faith is in fact irrelevant to their inquiry on all of the drug counts is preserved to counsel specifically  objected to that instruction and then as far as the money laundering counts we believe that that is preserved because counsel did submit requests to charge on the money laundering counts that the court then did not charge on at all brightener he just required to renew the objection he just didn't preserve the right he did not renew the objection but i also believe the court did not necessarily ask for any objections on that only asked if he had read the charges correctly and that is when coun volunteered one amendment to the charges but as far as the the drug counts in this case you know this is a case where the government was alleging that mr area lay in his pharmacist wife or dispensing drugs through their pharmacy pursu written orders from a doctor so there's no dispute that the drugs were dispense from a pharmacy pursuant to a written order from a doctor and this court from the time that it was still a part of the th circuit has been clear about what the government must prove to convict a pharmacist of an eight hundred and forty one dollars offense and that is that the pharmacist filled the prescription knowing that the drug was prescribed by the doctor who was acting outside the course of professional conduct practice or without a legitimate medical purpose but your client was no longer a pharmacist that's correct your honor he was no longer a pharmacist however even if you're going under and aiding and abetting theory then you have to show the intent of the pharmacist these drugs were coming through a pharmacy so even if he was aiding and abetting this if in may the pharmacist then the jury has to be instructed somewhere that a pharmacist intent must be to distribute those drugs knowing that the prescription was bad  doesn't that standard only apply to licensed pharmacists under joseph your honor this standard applies to license pharmacist but here again the drugs are coming through a licensed pharmacist this is not an allegation where someone is just distributing drugs on the street they're coming through a pharmacy pursuant to written orders and mr areally them's the himself was not the one filling these prescriptions he is an employee of the pharmacy that is owned by his wife and any allegation that the drugs are being dispensed illegally has to include the allegation that they were dispensed while the pharmacist knew that the prescription was bad and here there's just no way for the jury to know that the pharmacist had to know that the prescription was bad but the controlled substances act except only the lawful locks of those who are registered to dispense controlled substances so if he is not registered to dispense controlled substances and this is his criminal trial isn't he kind of fortunate to have received the instruction he received no your honor again this is it's coming through a pharmacy at the end of the day and the government treated mr area  as a pharmacist throughout the trial in the indictment in their closing argument they repeatedly said these two pharmacist knew what they were doing they treated him as though he was a pharmacist they even admitted before four be evidence that it's only relevant if you're considering him as a pharmacist so the government has treated him that way throughout the course of these proceedings and it's only when they've been called out on appeal and it's been pointed out that they did not give the correct standard to convict him that they have changed their positions and said well he's not a pharmacist and again even if he is not actually a pharmacist there coming through a pharmacy persist for so into a written order from a doctor and so he could only aid and abet  the distribution of those drugs and she is the pharmacist and therefore the jury would have to be instructed on a pharmacist intent even define mr ariel a liable for aiding and abetting that yet in these instructions they essentially create a strict liability offense for the pharmacist where if the prescriptions bad the pharmacist fills it then they're guilty and that is reinforced by the fact that the court instructed the jury specifically that the defendant's good faith is irrelevant here so if you take it as a whole that there's absolutely no way that the jury knew that you could only find these two defendants liable if the prescriptions were filled while someone knew that they were bad prescriptions that they were not issued in the course of usual professional practice and that has been clear from the time that this court decided hayes's the th circuit it was reinforced in hammond in one thousand nine hundred and eighty four and again  then you can show reasonable probability of a different result can your honor i believe that that those aren't necessarily the same same standards but i think we can anybody that you if you if the government can show proof beyond a reasonable doubt then the jury under the proper law and the evidence could have convicted and you can't show a reasonable probability that if they had been told instructed correctly they wouldn't of convicting can your honor we can and we've raised sufficient say in this case because we know i'm saying if the evidence is sufficient to prove beyond a reasonable doubt that he had the necessary then you can show reasonable probability of a different result had the jury been instructed you had to have the necessary in ten can you your honor i believe we can because there are other places in  instructions where the jury was provided with instructions that could have led them to convict on other grounds and he specifically would have doesn't count counsel the burdens on to the difference between a properly preserved objection and plain error of you cuz there was no properly preserved objection is who has the burden not could have convicted if you preserve it then the government has to show harmless error beyond a reasonable doubt on a constitutional iraq but if you don't preserve it you have to show a reasonable probability of a different result and where there is some evidence both ways then it depends on where the preserved it or not because the burke and what i'm suggesting to you is that your argument that there was a plane or a rd prong reasonable probability of a different result collapses into your argument that there was insufficient evidence to convict him even if he had been properly if they had been properly instructed and i'm just asking you about analysis of that what is wrong with the syllogisms i've just presented to you which is you either have sufficient evidence to convict him beyond a reasonable doubt regardless of the instruction or you don't and if you don't you are entitled to really think if you do then you can show kline error because you can't show with sufficient evidence to prove beyond reasonable doubt that there's a reasonable probability of the jury would not have convicted me been though there was sufficient yes your honor we believe that there was not sufficient evidence to establish that specifically mr arry l a knew that these prescriptions coming from the clinic were bad and then we also believe that there are other grounds on which the jury could have convicted him given the evidence in this case and all the statements about good morning may it please the court i'm laurel but right on behalf of the united states in this case through more than two weeks of trial twenty five witnesses and over one hundred exhibits the jury learned overwhelming facts through admissible evidence that this defendant and his wife intentionally are in a pharmacy that supplied more than a one million highly addictive pain pills to a pain clinic across the street i think it's significant to point out that even in the defendant's opening statement he all  conceded that the clinic was illegitimate said there was bad stuff going on over there and he wasn't all surprised that the doctors and the clinic owners had pleaded guilty that the only question for the jury in this case was whether this defendant a former trained pharmacist knew that the prescriptions emanating from that from that clinic for controlled substances were issued outside the usual course professional practice and without a legitimate medical the jury heard from a clinic doctor herself who testified that the prescriptions she issued were legitimate heard from two experts a medical expert and a pharmacy expert to the same effect the jury saw through photos and videos and heard from witnesses the defendant could see an enormous number of red flags just from the front door of the pharmacy leaving aside what actually happened inside the pharmacy it visible from medicines that are pharmacy for the hordes of humans lining up outside the clinic across the street st thing in the morning the clinic itself was of course a rundown old house that didn't even advertise as a pain clinic people rushed the door like a quote rat race the moment the clinic opened they'd wait all day and then the clinic would refer t across the street to the defendant's pharmacy to buy their pills the jury could reasonably infer that the defendant observed all of this suspicious activity at some point during the four years of the terrorist conspiracy the jury learned that i could fit in or his wife or at the pharmacy all day every day customer an employee witnesses knew those two were in charge of the pharmacy witness after witness referred to rosemary were done rosemary and on rosemary being the defendant's wife and on being the defendant defendant personally acted interacted with pharmacy customers and did he was quote often the only person in the pharmacy according to the one of the clinic doctors the defendant knew pharmacy customers sometimes passed out fell asleep or just plain didn't look right he knew that they were they showed up in groups having traveled long distances they didn't look like they had any major illnesses that would require that many pills they were shaggy unkempt they smelled that's according to other pharmacist unrelated to this case who testified at trial that that's how the clinic patients look to then one of those pharmacists by the way got around to reporting the clinic to law enforcement there was no evidence defendant or his wife ever did so the jury actually saw videos of customers inside the defendant's pharmacy moments after they got their bag of pills casually sell them to an undercover officer openly in plain view the jury learned th defendant supervised pharmacy employees rang up customers heard them complain about the pharmacies exorbitantly high prices told them that for oxy one of the more desirable pills for resale on the street for that they'd have to pay cash the defendant and his wife were the only trained pharmacists with access to the pharmacy pharmacies computer and the dispensing records which show that the great bulk of all the pharmacies dispensing as an eighty three percent came from a controlled substance prescriptions that were being issued from the clinic across the street in fact that clinics prescriptions accounted for more than ninety percent of the pharmacies gross sales to meet the extraordinary demand posed by the clinic the finn and his wife were purchasing ten to fifteen times more oxycodone and controlled substances then any other pharmacy in that same general area in that same zip code they did so after counting up all the cash at the end of the day only defendant or his wife did that and periodic making bulk deposits of that cash in pharmacy business accounts to pay the drug distribution companies to get the pills to turn around and to dispense them to to these customers it's also worth pointing out that the majority of these drug distribution companies eventually stop selling pills to defendants pharmacy and more particularly with respect to the conspiracy with the particular clinic owners across the way the jury learned exactly how well defendant and his wife knew them it was not arm's length their relationship was such that witness after witness testified mistakenly that they appeared to be related or they were at least in business together the clinic and the pharmacy so well that early on the clinic was actually ordering prescriptions with the pharmacies address and the pharmacies phone number preprinted on the prescription at the bottom the there is also evidence that the jury heard the relationship between the clinic and pharmacy was such that clinic employees could come get discounts at the pharmacy and pharmacy employees including the defendant's own wife could go across the street to the clinic at no charge not have to wait in line to get a prescription for  testified credibly that they remembered it was the defendant who personally filled their prescriptions went back to the part of the pharmacy where the pills are got them their pills he dispensed them and this was at a it is undisputed he was not authorized to do so his license had been revoked in two thousand and seven he'd been criminally convicted in twenty thousand and eighty two witnesses credibly testified that he did it personally now that is significant because the defense has made much of the fact that the government supposedly is only just now want to appeal resting on the defendant's criminal liability as no longer being a licensed practitioner contrary to what two to that argument the governor government did argue this back to the jury it was alleged st of all in the fact the face of the indictment down at a serial he was a former pharmacist twice in the opening at doc seven and sixty one the government argued the defendant quote wasn't even supposed to be filling prescriptions because his license have been revoked quote he shouldn't have been filling prescriptions at all during this time two thousand and nine through two thousand and twelve and then again in closing the government argued only medicine center pharmacy a lot of pharmacists who had his license revoked to fill controlled substances prescriptions you heard from patients that it was the defendant who filled them and that happened after he had his pharmacy license revoked now with respect to the eight hundred and forty one dollars the correct a forty one dollars legal standard for a pharmacist defendant has conceded they never raise this objection below it's actually a series of objections that that the license pharmacist has to know that  physician issued a prescription illegitimately they're also arguing that that the instruction incorrectly applied the standard of a position to him a pharmacist implicitly that there's a different legal standard for physicians and pharmacist and they more this is the most significant part they argue that the can jury instructions contain nothing on mens rea is it that the jury could have convicted the defendant of a strict liability crime none of that is true there is no error on either of those grounds the jury instructions let's start with the last one st the jury instructions are replete with references to knowledge and intent on behalf of the defendant particularly for counts one through four those are all the drug counts count one charge the defendant knowingly and willfully conspired to distribute dispense illegitimately except it's a separate federal crime for anyone to conspire to knowingly and intentionally distribute that's page sixteen of the jury instructions page eighteen t defendant must have knew the unlawful purpose of the plan and willfully joined in it later on for counts twenty three dollars and four dollars the district court charge the defendant must have knowingly and intentionally distribute it illegitimately defendant can be found guilty only if the defendant intended to distribute and dispense these controlled substances outside the usual course or without a legitimate medical purpose it goes on and on and on eight hundred and forty one dollars day makes it a crime for anyone to knowingly or intentionally distributor dispense a controlled substance except as authorized by federal law that's a page sixteen so it's simply not the case that we're at any risk that the jury found the defendant guilty just for having committed an action with no with no knowledge requirement in omens ready at all now it's also for important to point out the defendant has misunderstood the requirements of the controlled substances act and it's implementing regulations for for the benefit of the court in looking for situations where a pharmacist was convicted of a forty one a but for for example filling forged prescriptions and in that case it's an on opinion this court decided there was actually no requirement that a pharmacist who was being charged only with eight hundred and forty one dollars a violations not a conspiracy there is no requirement that he be charged with dispensing outside the usual course of professional practice or without a legitimate medical purpose it was sufficient that the indictment charged that he had illegally knowingly and intentionally dispensed illegally now the significance of the basis upon which the court issued that ruling was because of section eighty five dollars which says the government is not required to negate an exception to a criminal law and because the exception eight hundred and forty one dollars is the rule and the exception is if you're a license practitioner that's where the two prongs come in this court has already said for a pharmacist that is not required now let's also this is significant there's a reason for that right if it cannot be the case that a pharmacist is only violating a forty one dollars day if there is a physician issuing the prescription and the pharmacist knows the physician issued the prescription illegally why is that the case one can easily imagine a scenario in which the physician actually issues a prescription properly does everything right there is a legitimate pain there's a legitimate basis they don't see any red flags they can they conduct all the necessary exams compliance checks etc etc but it's only when that customer walks to the pharmacist the prescription that the pharmacist becomes aware of additional information that now makes dispensing pursuant to that prescription it legal the pharmacist can see for example track marks can see the circumstances under which the customer arrives in a group can check a prescription drug monitoring program and see that he's been doctor shopping or has been going to pharmacies all over the place under those circumstances the pharmacist would be guilty of violating it forty one dollars day while the physician would not separately we know from the steel case that a pharmacist can be his victim of eight hundred and forty one dollars when there's not even a physician involved so it's simply not the case that the defendant's understanding of a forty one dollars a is the law in all circumstances now even if there were determine whether a prescription was issued for a legitimate medical purpose and the government would respectfully submit that it's not always been clear about when a prescription is dispensed by a pharmacist either hayes and joseph as the court or the panel has pointed out are both distinguishable because they apply to a license practitioner who the defendant is not defend it is also incorrect when they allege that the only circumstances under which he is guilty of a crime under the indictment is for aiding and abetting dispensing that's not true in count one he is charged with willfully and intentionally dystrophin think and distributing the significance of that is the jury was instructed that anyone can be charged with unlawful distribution at that point during this conspiracy the defendant was just like everyone else without a pharmacy license he he did not say he was he was illegally distributing so we aided and abetted the dispensing of license practitioners the doctors and the other pharmacists including his wife but he also intentionally conspired to illegally distribute not to mention knowing that the controlled substances were being further distributed by the customers who he knew were likely selling them or trading them in the street so as the court has pointed out even if the court erred and it was and it was plain it certainly did not affect the defendant substantial rights for all of the reasons and all the evidence that the government recited at the beginning i'd like to move on to the good faith is a relevant objection definit did not preserve this a trial if for no other reason then the arguments that he now makes on appeal are completely different than what he made below so the district court never had a chance to pay attention to the idea of it perhaps he should be instructed on a different on an objective standpoint or state of mind vs the subjective state of mind for the different products now the government  physician issued an illegitimate prescription the bigger problem is that since top in it's been black letter law that good faith is irrelevant to a forty one a the token court actually states because the  at that point when they are talking about the objective subjective standard they are talking about the standard to convict a doctor they are talking about whether it was issued outside the usual course of medical practice and whether it was issued for a legitimate medical purpose which is the standard that you look at for a doctor prescribing and it is not the standard that you apply to a pharmacist as was made clear again in joseph which was after tope and where they're specifically looking at the pharmacist and there they make clear that the pharmacist must know that the doctor dispensed without those requirements and again the government started their argument with the fact that the only question here was knowledge and they say that you know there was mens rea in the instructions because they were instructed on knowledge but they were never specifically instructed on the knowledge that a pharmacist must have they were instructed that you must knowingly possess drugs and intentionally distribute them they were never instructed the pharmacists must know that the prescription is bad and the supreme court just recently in repaid has in fact says how important this mens rea a requirement is it applies specifically to the knowing why the knowing filling of the prescriptions and not just to the possession of the drugs and that is what the instructions said and just to the extent that the government is arguing that steel says something different still is a case about the sufficiency of the indictment it is not a case about what the government must prove to convict the pharmacist it is simply about what most yes i dive of the argument  still in this minute number of years but if the argument from steel was the fact that it wasn't contained in the indictment requires a reversal because it's an element and elements have to be set out in the indictment if still just says you don't have to allege it because it is an exemption but you do have to prove it if you're going to convict a doctor if you're going to convict a pharmacist and i just want to turn briefly to the government's recitation of the facts in this case because i think the government is  again doing what it has done throughout the case and throughout its brief and we've pointed out a lot of it is one the government is alleging facts that were not actually proven if you look to the government citations they do not stand for the proposition that the government is citing it for and secondly the government is taking one example and acting as though that is the rule as to the prescription pad that they want to argue over there was one single prescription pad in one patient file of the many many patient files that were admitted into evidence there's one prescription pad from two thousand and two not even within the conspiracy here four but it's not even a controlled substance so there's a single instant and they want to take that to say every prescription that the clinic issued had in tepees information on it that's simply not true they also want to say that you can see the front door of the clinic from the front door of the pharmacy and if you look in their brief or they say that they  exhibit seventy seven exhibit seventy seven is a picture of the front door of the pharmacy what they do not cite to is exhibit seventy six that shows that the pharmacy is over here the clinic it's down the street with trees and buildings obstructing the view between the two so the government has been misleading in its recitation of the facts before the court and to the extent that the government wants to say that there was some kind of line from the clinic to the pharmacy or a rat race to get over there its own agents testified that they conducted surveillance they stood there for days at a time and sell ten to fifteen people per day agent crutchfield who went into that office said he saw eleven person one time eight people the other time  they waited sometimes for long periods of time and after they got the prescription it was celebration time in the lobby and so forth so your honor i believe a lot of that evidence is actually referring to the clinic which is one of the problems in this case is that they're basically not distinguishing between what's happening at the clinic and what's happening at the pharmacy and i know my time is that but i do want to know that much of what the government is relying on is hearsay that came from that video that we have raised as another issue in this case that is essentially providing them with the link between this clinic and this pharmacy stand can raise an issue that you didn't have an opportunity to respond to because