we were here united states versus merely shmuley good morning to the contrary it is only after assessing the standard of care that it is possible to evaluate whether a defendant's conduct straight so far from that standard in order to be deemed criminal despite that ruling the district court in this case said that standard of care is not an issue and they not be testified to by the defense expert that set up a tremendous dichotomy for the jury that almost inevitably lead to a conviction here because the defense in this case expert was was able to address the defense was able to address that what you have is i mean and the government typically this typically comes up when the defendant complains that the government is putting in excessive amounts of expert testimony find any but i think what happened here was the defense accepted that paradigm the defense said ok look we understand that you have to be able to talk about what is the general practice in here pain management if you're going to talk about how far something strayed we accept that burden but what we want is a defendant actually return to your question and one second to complete the answer but what we want is to have a doctor who's going to be able to give the jury a little more orientation about where that that standard practice and where criminal might begin to release gives it to labels though i mean that you want to use because i mean i noticed the twenty the government's brief they quote some from some of the redirect as you were able to you were able to ask the expert there's a big range of types of practices that a doctor may have in terms of the level of care could that go from the best possible down to be doing better in other words you seem to be able to put forth a defense that hey look this wasn't  this wasn't this was sub par medicine we acknowledge that but it wasn't criminal and so what you couldn't do is use the term standard of care but why was that so important i think it's more than that your honor there i admit there's a little bit that comes in the creeps back in the defense was able to get in on the on the redirect of its own witness but that was not essentially the thrust of it if i can just return to judge tony's question i think there is an answer because it doesn't come up specifically as an appellate issue in the court of appeals but i'll point out t indicates that she was able to testify much more broadly with respect to the medical standards in the chub a k c h u v e which is a seventh circuit case where there's a discussion extended discussion of what happened in the trial court the trial  problem i believe is that this is difficult stuff for laypeople we know but it seems to me you point you wanted to make that you couldn't make it almost the only thing that you couldn't establish is that usual course of medical practice now malpractise is not the usual course of medical practice i hope but that's correct you and the and the judge finds that important enough of a point to instruct that this is not a malpractise case but she hasn't allowed any evidence about what is enough practice cases by doing that what the jury is hearing are our standards really almost a best practice of the standard when you read this and has to be not unusual course a medical practice in order to be criminal but also that has to be other than in good faith there's a good faith element to that although that's an objective standard to which is a bit odd that seems to have been what is accepted now so it's really a question of sort of what red flags he may have missed it cetera but when you look at the testimony of the rebbe who starts this whole thing he has asked over and over and over by the government questions that really go to sort of top level care really excellent care in pain management and the jury is hearing that and what the defense was in this case because there was a lot of practices that are indefensible medically but the defense of i'm sorry are the evidence overwhelming in this case  he was found with a million seven cashers as there's so much evidence that what he was doing was outside the normal course or usual course of medical practice how do you how do you go how do you show this that there's harmful error for that i mean the two basic points in response to that your honor first of all there's a there was a dispute about the level of practice certainly the numbers are the numbers are but if you look at there was five pieces of testimony five people testified about what actually went on in that room all five of those including a government undercover who sent in right supposed to say hey i got no pain go ahead give me the drugs doesn't do that goes in and gives a whole story and the doctor spends fifteen to twenty minutes with him dr greebo even sort of grudgingly says that was appropriate treatment all five witnesses who were in that examination room said the doctor did what the doctor should be doing to be sure what is his default is default is oxycodone is a miracle drug and people should get it but that's for the jury to decide when they have both sides of the story if you look at other pill mill cases that are out there they're extraordinary even compared to what happened here doctors who are never seeing patients doctor who are precisely prescriptions doctors who are writing multiple ones a day doctors who are falling times he didn't have the room in the office but that doesn't mean that he was forging them and doesn't this really mean that he saw them no one ever testified that he saw them to the contrary what worked for so right well somebody certainly forged and that's no doubt but the defense here was that please the court my name is edward disc and i represent the united states on appeal i also represented the united states below if i may let me start where judge journey just was which is from the government's perspective this was not a case about the standards of care it certainly was not a case about medical malpractise there was overwhelming evidence that this defendant was knowingly and intentionally engaged in and indeed orchestrating a criminal conspiracy contrary to what appellant counsel just said the witnesses who testified in particular we've three patients that the government relied on and i use that term loosely did not say that everything that the doctor did was normal or acceptable the undercover referred to  handed cash to the doctor in the examination room in return for his prescription which he continued to get a month after month after month that was standing the fact that he did absolutely none of the other things that the doctor said he might want to consider such as physical therapy such as other forms of other prescribed physical therapy and correct to significant component of the government's case where the things that dr marilyn shelley was doing to try and cover his tracks so for example he would austin simply recommend things like physical therapy or seeing a specialist but wouldn't actually follow up on the charges evidence leave the jury to decide that this doctor was negligent no  and committing malpractise through using this in oversight but not new your honor for two reasons the first is as judge tony correctly noted the jury was specifically instructed they could not so find the jury was instructed correctly there is no dispute that the jury instruction here was correct that in order to convict the defendant it was not sufficient for them to find that he was simply a bad doctor they had to find that he knowingly and willfully participated in a secure conspiracy to write prescriptions with no medical purpose that is that he ceased to function as a doctor but instead function as a member of this conspiracy so when the jury is properly instructed on that which to there is overwhelming evidence that that's actually what happened here the government called to cooperating witnesses each of whom testified to a direct criminal agreement with the defendant one of them a man named abraham correia who started as a patient of the doctors has been hired by the doctor to service his bouncer despite the fact that the doctor has written him an  attention in the context of the request to charge which she would have had at that point of the letter briefing i think was focused a little bit more specifically on the facts the facts of the expert disclosure but in terms of the wexler standard and whether or not judge mcmahon's ruling ran afoul of it i think she is right that this is really more of an issue of labels and it is of substance because if you look at what the wexler court actually said about the testimony in that case that was offered about the standard of care what it said was that the expert would be allowed to testify about the scope of medical care provided by those who engage in the practice of dermatology because in that case the doctor was a dermatologist and there is no question that both experts here were allowed to testify just that is the scope of the medical care provided by those who engage in the practice of pain management that is what the wexler court had in mind when it said you should be allowed to offer testimony about the standard of care that is what it is a reasonable doctor under these circumstances might do and again i don't think there's really any serious dispute both experts were allowed to do that would judge mcmahon was concerned about was introducing new terms to the jury because the government had not used the term standard of care the government's expert had not used the term standard of care and so her ruling was i would like you to stay away from that term which i think is going to be confusing to the jury but if your expert wants to testify about the actual underlying issue that is what a reasonably prudent doctor in these circumstances would do she is free to do that and indeed she indeed she did do that she did that at some length you have a serious argument is the doctor were feel was between a rock and a hard because since she had to to how how is that bridge so it two responses the first is that i don't think dr warfield was actually permitted from giving most of that testimony dr orfield was entirely free to say that what dr marilyn shelley was doing was not common was not typical was not something i would instruct my students to do is not something i think is a good practice all of those things she was perfectly free to say and in some cases she did if you go back and you look at the transcript for example a transcript twelve thirty nine she said that one of the things she was asked about was not particularly common but not outside of the scope which is certainly the point that they were trying to make the doctor merely felt he was doing things that perhaps the best doctors in the world might not do but was still within the scope of  the legitimate practice of medicine where they seem to want at least in their appellate briefs is for her to have done something completely different which is to say this is what medical malpractise is this is what criminal activity is and i am opining this was  medical malpractise and that was improper for two reasons the first is she's not a legal expert and so she's not in a position to testify with authority to the jury that this is the standard for medical malpractise because she's not an expert on that but the second in the four more troubling thing about that and this did come up in the letter briefing before judge mcmahon below is the distinguishing between medical malpractise and criminal conduct almost always turns on the mindset of the defend it so the appellant uses the example of leaving the sponge patient in order for an expert to opine on whether or not leaving a sponge in a patient constitutes malpractise or criminal conduct the expert would have to apply to whether or not it was intentional and there's absolutely no way that dr warfield could be an expert on whether or patients that mirrors really gay prescriptions to he wasn't acting as a doctor and then said let me make clear there have been some patients in pain some patients who need oxy kono and that's not the question for you in other words the government seemed to concede that there was some group of patients who needed need pain medication in light of that how do you defend the district court's use of all the cash transactions as the basis for forfeiture because i believe there are more sure i was just pointing to in the summation had to do with the insurance patients the government took the position at trial which is entirely consistent with what wasn't one of the defense witnesses a cash patient correct and we argued she was not legitimate the defense called two patients one of whom was a cash patient who she argued was part of the pill mill she was the one whose daughter was getting the exact same prescription and would simultaneously been seeing another doctor who was also convicted of running a pill mill the second was an insurance patient but the government's position all along was that we were going to concede simply for the sake of argument that the insurance patients might be legitimate and we were going to focus our trial evidence on the cash patients so with respect to the cash patients there was that position articulated that that i might find support for the notion that minority meant insurance only thirty there i think it's actually in if you go back and look at those comments in the summation there it's also we make the same point in the rebuttal where we focus the jury on the cash machines but it's also in the summary chart which we included in our appendix and which we gave to judge we command in support of our forfeiture order where we broke out his earnings by dividing them between his cash patients and his insurance patients and the forfeiture number comes exclusively from the cash patients short unless the panel has questions i'm happy to rest not criminal and i think that's really the the core of our case here which was whether there was room in this case both of our positions from an evidentiary perspective what was allowed in for the jury to make that determination and our position is it wasn't that dr more so hobbled by this decision by this pretrial decision that she wasn't able to elucidate that and what the cases say what the what the commentary says is in general juries have a very very hard time distinguishing between civil and criminal  especially in the areas of medical i do not the charge humor that he was the judge said you must remember this is a medical malpractise case is not enough for the government to prove any degree of negligence malpractise  sloppy because that was she'd no evidence to support that and she never did find those terms for the jury so those turns out they don't really mean much without the context that the defense expert was intended to give them and i do want to address to join us a question about why wasn't  more prominent there's a more full answer to that the defense the government moved to preclude what dr warfield before the defense even was able to put in a response the judge i think in the intent to give some guidance before the disclosure i don't think that a defendant would normally put in legal authority necessarily say there was no legal authority in there i believe it was simply disclosing what she was going to testify to a news done consistent with what the prevailing second circuit law was and just a final point on my time is church the right church do do make that point but if that's not what whatever their position is doesn't absolve the district court from making appropriate findings here the district court simply adopted a p s r and said well ok all cash patients were legal but but she never made findings to support that the evidence was to the contrary on that there were plenty even dr greebo of their expert testified with respect to insurance or cash or otherwise that he reviewed only twenty three files and he used the term majority of those  seem to be outside the practice which obviously implies that a number of them were not and there are cases we cite three cases in our brief i think that indicate pretty clearly it is not enough to take such a small subsample and make that extrapolation i'm not saying she had to order that all of them reviewed i think there's a wells which you've done their art well the test under which you used to estimate using your wealth for example i mean first of all when you have the expert saying the government's you're saying not all of these are fraudulent that tells you and were not other courts have rejected exactly the same number as what was here in terms of what was appropriate of the evans case which we cited the ten or twenty files out of seven hundred think that were reviewed that was considered inappropriate and chub it was ten out of ninety eight that was inappropriate and then this court in the archer case who was for i don't hundred seventy one that was inappropriate thank you thank you thank you reserve decision