courtroom this morning you all are experience litigators i know you are familiar with our lighting system and with so with the red light comes on if you'd wind up your argument that be great  and with that i'll call the first case of the united states of america versus james chapman police court we have been called here today to respond to the question posed by your court and this question has two parts i'll begin with the first part whether the district court's judicial notice that cartersville and i have to note an error in the question it says barrow county but actually this is a bartow county case are within the northern district of georgia whether that raises a legislative fact that's excluded from rule two zero one or whether it is an adjudicated fact so i'll answer that portion of the question first it is our position that rules that says this that a legislative fact are those that have a relevance to the legal reasoning and the law making process that something that judiciary must  that has not been proven in order to engage in this is repeated in the commentary judicial reasoning and in order for a court to do its job we must always make assumptions based on a high degree of in dispute ability about the definition of words and what how we can begin to converse about what the words mean in the courtroom otherwise we're spending all of our time trying to define and redefine words that have no degree of dispute ability so for example on a calendar what day did that fall on the witness can look at a calendar and say wednesday whether the temperature is hi that means it would be hard out if the underlying agreement that we humans have about the definitions that are necessary to do our job those are legislative facts a j to facts are as the advisory notes point out simply the facts of a particular case and the usual method of proving those the accepted and necessary method of proving those is through evidence the decision in bowers relies on the eighth circuit opinion in gould and the reason i take issue with barriers and certainly its applicability to the chapman case today and why i say that it is incorrect and we should no longer be relying on that fifth circuit decision set out and ours is that ghouls used a different definition for legislative fact that use this definition facts that do not change from case to case but apply universally and certainly the law twenty eight us c section ninety that sets out which counties belong to which judicial districts don't change from case to case i agree with that apply universally i agree with that but the problem is one of the piston biology the meaning of words the origin of words one that might as is wrong we're not bound by no i don't believe that you are judging sin because i think there's a distinction and there's the ability certainly to overrule it and to make a decision that their use of a legislative definition for venue is no longer applicable because the underlying question the really important question why anybody cares about this today is whether taking judicial notice that the locust elected that the place where a crime has been proven to have occurred whether it falls within the judicial territory the jurisdictional territory of that court infringes on the sets forth that it is we make the government prove that and how do we make them prove it we make them present evidence and then when they've presented sufficient evidence we don't then allow the court to take judicial notice of that we send that law back to the jury with an instruction and it begs the question why that isn't the case here in fact the government did prove that these offenses through a witness took place in cartersville and the witness was allowed to testify that cartersville falls within the northern district of georgia so it begs the question why we allowed judge murphy to take judicial notice of that even with the hedging instruction that he has to give that says you know i've just taken judicial notice of this but if you disagree because you're the fact finder you can do so and as we point out in our briefs judge murphy agrees i after the objection was made to that instruction i can't imagine anybody would disagree with me on that i assume that they'll just take it at my word because i'm judge murphy and i'm sitting on the bench so why would know problem two circuits at least until that i don't think we have build a chair and i hope that you don't judge anderson because of exactly what happened the colloquy in this case and what we all know to be the truth the jury is told from the beginning of the case when they take their first oath of why dear that i'm the judge and i'll tell you what the law is and you must follow my instructions and then judge murphy concludes the case by saying this the government has proven that bartow county and cartersville are within the northern district of georgia of course you're the fact finders and if you disagree you can find otherwise but i just told you that in fact they met their burden of proof before we leave this topic i just want to be sure i understood that pov i thought that i understood your brief to say to object to the fact that the district court had told the jury that the land of medical group was located in the northern district of georgia but he did not do bad he did not sad that the crime is alleged to have been committed in cartersville and bartow county now leaving aside the fact that there really was not any proof that it was in bartow county simply that it was in cartersville the government did elicit from agent howard testimony that carter's bill is within the northern district of georgia i wanted to ask you on another topic what impact does this court's  affidavit well judge martin i would have to ask that you allow me to brief that separately i really am not prepared to speak on that because i was called here on this one question and perhaps i misunderstood but it says to be prepared to discuss at oral argument this question though that doesn't mean you can only have to talk about that i don't i misunderstood and i'd be happy to brief that again and certainly do a supplemental brief with respect to how  affected the search well actually that was a codefendant and and all the same arguments were made in other words it was even the same motion closed you didn't look at them enough to know that i really would be remiss for me to comment on that now but i would be delighted to brief and do a supplemental brief on that issue how vote back subpoena in a fax the decision is were actually the same argument you had actually adopted those arguments yes i believe that we did your honor but i have not commented because of the ruling of voter back on how your decision would case i mean as you know they were both they both challenge the same affidavit so yes same issues raised all right thank you all right i have just a few seconds left before i have my response and i don't want to waste a second so i do just want to say coming back to the question that the court had noticed us about the issue of whether this is adjudicative or a legislative fact i ask the court to consider the notion that this is not a difficult burden of proof for the government they simply have to ask a question and they can prove it and once they do it it isn't necessary for the court to take judicial notice after that thank remarks that at the very least venue is an adjudicated fact and therefore subject to federal rule of evidence to a one the reason why that's a crucial concession is because if even under the which is which the governed by the way does not concede it's an adjudicator fact but let's start there for purposes of of where we are even if it is in fact an adjudicative fact that the that the court to judicial notice of and federal rule of evidence to a one applies then a court is required to give a limiting instruction to the jury informing them that they are free to disregard the instruction and arrive at their own conclusions disregard what the court has just said that is of course exactly what happened here the the district court judge murphy instructed the jury that they were free to disregard the fact that he had taken judicial notice of the geographical locations of cartersville in bartow county and that they were located within the congressional federal district of the northern district of georgia so even under appellant's argument we don't have a problem here there's no error correct but let's move back in time when you isn't actually an adjudicative fact that the that the court gave judicial notice of here of cartersville georgia and bartow county these are legislative facts these are facts that are one of which was actually the creation of a statute twenty eight u s c section ninety which the court helpfully provided to the parties that's simply not something that's subject to dispute that's the kind of fact that a court can take judicial notice of as a matter of law without having to instruct a jury they can disregard similarly although cartersville georgia being a city located within the confines of the interest to georgia does not appear in that same statute it's the same sort of a stab of and i think it's worth we're recognizing there's a good public policy reason why there are certain facts the courts can take judicial notice of without giving a limiting instruction to the jury these are the kinds of facts that don't change from case to case because we don't want juries making different decisions in different cases about something like where discardable where is cartersville georgia located within congressionally determined districts but again even if the court district court got it wrong even if this weren't a legislative fact and it were an adjudicator fact the court acted properly under rule two a one by giving a limiting instruction that disposes of the appellant's argument that the court somehow directed a verdict on on this question the court made it very clear that at the end of the day it remained the jury's responsibility to take the information that the court had provided i see the geographical location of the city in the county and apply it to the evidence that they had heard in this case which is presumably what the jury did we we're required to assume that juries follow instructions when they're given and which two circuits of wood which to i believe me honestly i don't recall right off that how might i believe it's the sixth circuit your honor and possibly the eighth circuit but please do not hold me to it but even if it were error of some kind for the court to  again i think it's crucial to note though that even if there were somehow some error in what the district court did here that is subject jury instructions are subject to harmless error review which is to say that this even if it were error which it was not th court would undertake to determine whether any factual found whether the particular fact was somehow contest it and if it were not contested this court would not be able to conclude that a defendant's constitutional rights had been impaired even if the third thirteen zero three it's a two thousand and five case in that case this is an eleventh circuit case published the jury the court there had provided instruction to the jury that telephones were facilities in interstate commerce as a matter of law and crucially the court did not give any sort of limiting instruction as to that fact the court simply took judicial notice and instructed the jury that an element of the particular offense at issue which was whether or not the crime had had affected interstate commerce it took took notice the telephones were facilities in interstate commerce degree case makes clear that we started to discuss that and other words it was treating jurisdiction different from of you know the  when there are certain kinds of errors even constitutional errors which in the setting of a particular case are so unimportant and significant that they may consistent with the federal constitution be deemed harmless and they then they go on to say plainly an instruction that i'm it's an element of the offense meaning in this case took it from the jury from the province of the jury that the air they found in the ledge there would be subject to harmless error analysis  what i think's important here is at the end of the day the diff the fact that cartersville georgia and bartow county were located within the northern district district of georgia were were unchallenged a trial agent howard was not cross examined on that fact so that fact was uncontroverted and under jury that means that there that it was that there was no reasonable doubt that the jury would have reached the same result as to venue with or without and willfully joined in that conspiracy first of all i think i think that argument in appellant that that argument from appellant confuses dr chapman's motive with the element that the government's required to prove which is whether knew the names the illegal aims of the conspiracy the government argued in its closing a trial that dr chapman likely had multiple motives for why he was willing to exploit his medical license in this fashion for over a year one was in fact money that he was receiving received approximately three hundred thousand dollars over the course of the time there which was more than physicians in his position were receiving but in addition he was motivated by the fact that he had access to drugs to support his own addiction and also and also frankly that he was a he was a doctor who had fallen from grace and was was motivated by his ego to be able to get back into the business and could sort of be king of his castle at a clinic like this but to specific to to respond to take the court's question a bit further it's not required that the government's not required to show that a defendant somehow shared in the ill gotten gains of a conspiracy and here to the extent that the government charges that the purpose of the conspiracy was to sell as many pills as possible dr chapman engaged in numerous acts to further that aim of that conspiracy as the court knows an agreement to join a conspiracy can be inferred from performing acts that further its aims and here there would have been no pills to be sold were it not for dr chapman using his d registration number and signing d e a two to two forms for the over the course of an entire year and submitting false applications under penalty of perjury that were providing facts to drug supply companies to make it look like this place was more legitimate than it actually was wouldn't wouldn't have used chapman's a registration number to order drugs even if it were a legitimate operation that's that's correct the well a and g was not an titled to order drugs doctor the law is that that is dr chapman's d e a registration number and die chatman was responsible for it and dr chapman was supposed to be responsible for both the purchasing of controlled substances and supervising the dispensing of those controlled substances so while it's the case that those pills could have been purchased in the as part of the clinics operations the fact that they were purchased fraudulent me pursu to false representations that were made by dr chapman himself renders both the original purchase from the drug supply companies as illegal as well as their ultimate dispensing at the clinic do you what do you have to say about the court's ruling and voter back how does that impact what we do here the the court and the voter back case the the panel is exactly right to judge anderson is exactly right  appellant joined in the motion in the lower court thus a dental issues were raised in the district court level similarly appellant's brief here raises exactly the same arguments at the appellate level  therefore the government respectfully submit that that supplemental brief briefing is not necessary here there was compelling and rests frankly on the other you we made in the voter back case that that the that the showing that the court did not abuse its discretion in refusing to have a frankly delaware hearing i would also note that because appellant adopted all the same arguments at every single stage of review appellant here failed to address the point that even if some of the allegedly false statements in the agent's affidavit were struck there was still sufficient probable cause there were still sufficient facts alleged to have found probable cause appellant did not raise that in the initial brief and therefore it's waived before this court just like the defendant in the other case did not raise that issue before the the back panel i have a note of course i'm just curious the first trial in there's a hung jury chapman and his direct knowledge of the illegal activities at the clinic so we respectfully believe that we narrowed potential targets for distraction and the second jury was there for able to focus on what was evident let me ask you another question about that drinking alcohol during work hours while prescribing controlled substances that this clinic is relevant because the only real issue at trial in this case was whether he was prescribing controlled substances within the usual course of professional practice it was uncontested at trial that it's outside the course of usual professional medical practice for doctors to be consuming liquor while they're prescribing highly addictive hospice level quantities of controlled substances also significantly the government it does tailed with the with the mountain of other evidence that the government had that he was also abusing controlled substances of his own and direct the court's attention to the five days in april two thousand and eleven when he coconspirators illegally procuring laurus that hydrocodone for him then he wrote a prescription to someone else in someone else's name that he knew he would consume himself even consumed those pills and he then proceed proceeded to prescribe to twenty one different patients while he was high as a kite and incapable of even writing his name so the fact that he was drinking and abusing controlled substances during the time frame of the conspiracy is significant i'd also just i'm sorry just murdered you did you have a perfect well i was just thinking about you know many decades ago now our represent the medical board and it just seems mysterious to me that a doctor and this situation wouldn't have come to the attention of the medical board before he you know got into criminal problems i've run out of time but with the court like for me to respond if you know the answer in this case the evidence shows that the medical board was immediately aware of dr chapman and everything that was problematic of his activities at that clinic they began investigating him early in two thousand and ten and they put their investigation on hold because the evidence of their in fact being a criminal conspiracy was so significant they did not want to compromise the ongoing law enforcement of us thank you thank you well you have dragged me into this more interesting area and i do want to comment on that there was a mistrial the first time around with dr chapman and the jury was interviewed by all of us and what the jury made clear dr chapman obviously was impaired and they believed that he had easily been manipulated by drug abusing and drug diverting patients and that his impairment made it nearly impossible for him to have engaged in any knowing involuntary conspiracy with the other folks that were running the clinic he was just doing a bad job at at being a pain management physician in fact the medical board was aware of him early on and one enormous piece of evidence in the trial was was that cross examined heavenly and argued completely in closing argument was that the agent called the medical board thoroughly on and told them to and i quote stand down the military terms stand down in other words get below us so we can do our criminal investigation job and let him continue to treat and prescribe to patients for two more years so that the government would have a case to prosecute and that was really  of a focus of the first and the second trial i don't want to use the last minute i have for the much less interesting portion i didn't recall in your brief that you made an argument that  in effect he was innocent because he was impaired and could not fall the intent you know and i apologize if i have misstated that judge anderson i was asking answering judge martin's question as to miss curiosity why it was that we thought the first case resulted in a mistrial they believe not that he was impaired and couldn't have made those decisions and and i shouldn't have said it that way what they concluded was from watching the video and hearing the witnesses at trial and quite honestly watching the man during trial that he was so impaired and so unfocussed that the notion that he would engage in a conspiracy to plan out here what it was that these clinic runners wanted him to do and follow their instructions that was just way more than he was capable of taking on that what he did is just what boat right said he found a job that he could was able to do according to the clinic owners and he did it but he did it very poorly and to the detriment of many patients but notion of engaging in a conspiracy to distribute drugs as a drug dealer would was simply beyond the ken they believed of what he could have accomplished given his state of mind thank you must thank you