two pharmacies which basically broke every rule and regulation in the book when it comes to pharmacies and that's what the case was about and that's how it was tried it was first and foremost you fraud that was three different counts of conspiracy mail fraud wire fraud was seemingly an afterthought when i was preparing for this case i went back into the record and i looked at what judge buchwald said when she sensed miss lasher and she went below the guidelines the guidelines were elevated because of the fraud and judge buchwald said at page a one twenty five  why she's given a sentence this is because i do not view the most serious aspects of the crime committed here from an economic perspective but rather from a public health perspective and the failure of ms las er to conform her conduct to what she absolutely knew was her professional responsibility as a pharmacist so there is an intent to defraud element to section twenty one u three thirty three the misbranding statute which makes it into a more serious felony than the regular misbranding which is a misdemeanor and so there was that element but the mail fraud r writing of it me and they are growing up at united states versus been day setting the be the outer limits when judge buchwald instructed the jury in this case with regard to the fraud case both counts at page one nine hundred fourteen of the transcript she required quote specific intent to deceive for the purpose of causing some financial or property loss to another theory was properly instruct you not contending the jury was not instructed as to that element that's correct but the element this is not an instruction this is a legal sufficiency yes it is your honor but there was testimony that the recipients of the drugs didn't always get what they paid for well your honor there was the the part of the mr brandon was the manner in which the pills were counted in each in each file they weren't counted by pill counter as they should and came back to the pharmacy and were then just dumped in a drawer and then sent out again without checking whether they had been adulterated or expired in their previous trip to the community there was evidence of that but the essence your honor the essence of things is that people went on the internet to get the i understand you're saying is the essence of the crime of course as you just pointed out judge buchwald sentenced your client according to exactly what you just said was the essence of the crime correct so with respect to the mail fraud the issue might be the issue is whether there was technically a mail fraud and you know it may not be the biggest was promised a case of fraud but there's a witness who testifies i wouldn't have signed up for this if i knew i was going to get used  the so there's some evidence that the jury could have believed to support the view that the purported victims of the mail fraud did not get what they paid for and this went to the essence of the bargain to in at least one person's view now that may not be if if you were here saying and then ms leisure gets sentenced according to guidelines that suggest that she defrauded all of these customers of the value of their that that one witness illustrated stemming from the witness's testimony was as judge lynch stated that she would not have ordered the pills if she knew x y and z that gets into this  a no sale theory weight the no sale theory is the mere fact that the victim would not have purchased if she knew all the truth is  you know yes if the if the testimony is that she represented herself as a harvard educated pharmacist and i only buy from yele educated pharmacists that would be a work of the purported victim but here she's saying i wouldn't have bought not because i disapprove of people who have who are operating their pharmacies in effect as as if they were drug dealers and i don't approve of that so i wouldn't have bought but it's i wouldn't have bought because i wouldn't have bought if i knew i might be getting stale pills or i knew that i might be getting fewer pills than i paid for there was no there was no with regard to miss walker no testimony there was no financial a property loss because it did not go to the essence this was an internet pharmacy without physicians and money to receive precisely the essence of what miss walker want to why is that the representation i was majorana that's not in the trial record that's what i said we with the court that's an expectation of what a person when a person goes to a pharmacy with a prescription in hand and hands it to the pharmacist it is implicit you know if  exact drug that was prescribed to and get the right number of films or i got expired films and that i would be defrauded that the difference is your honor miss walker didn't go into a pharmacy she went into an internet pharmacy that she knew there was no physician and that there was a questionnaire and that it was bogus and that she got what she didn't know she didn't know all of those other things i mean where the enemy is so the whole essence of your argument is that your client is basically a drug dealer and not a mail fraud or i mean this this case really does go beyond a simple aspect of misbranding this is putting out into the community controlled substances and addictive substances based on bogus prescriptions this is rather more serious than just if they didn't send the right number of pills there's a there's a whole dimension to this that you're you're leaving out of  am not sure on of the substances involved which include for your set tramadol and soma are not and want the record to be clear not controlled substances which is the essence of my four a four b argument where the  government the said that she was not quoting page seven hundred sixty nine information she was nothing more than a drug dealer in a white coat they transformed it into that with the testimony on the floor for b of people coming from out of state missed something there that the other crimes evidence was essentially the difference was it was in person and the people looked scruffy and came from out of state which didn't seem to me to be in any respect more prejudicial what was the primary fraud or leg you are telling me that the if there was a different and more serious and more potent drug involved and the government the evidence in summation that distinguishes that evidence from what was going on over the internet age seven hundred sixty nine the summation well she is nothing more than a drug dealer and a white i think that's true and i think that's true based on the fraud evidence these are drugs that are regulated in such a way that they're supposed to be dispensed in a particular way yes you're  good morning to please the court i'm assisting united states attorney daniel richard thought i was one of the prosecutors representing the government or district i represent the government on appeal i want to start with a brief correction of the legally irrelevant but few are set and some are in fact controlled substances he was not tried that way but it's not correct as a matter of law both of those substances are controlled let me make two other points in the order in which i think your honour's were asking and their control meaning that not only would you need a prescription the way you might work on a cancer medication but that it has to be the triplicate form and all that sort of stuff yes or are they fall within the controlled substances act so more recently than fewer such and in fact there was true trial litigation about the controlled substance status of your set but none of that was before the jury i want to correct the legal point but it's actually not relevant to why we're here why we're here is because ms lasher alleges that the jury could not have found her guilty of ma fraud wire fraud and conspiracy to commit those offenses we respectfully submit the very debate your honour's were having with my adversary crews why that jury verdict should be affirmed all of this all of these debates and inferences one for the jury which was properly instructed is no dispute about that and the jury found beyond a reasonable doubt that those three counts were proven and the evidence in front of them down was not just sufficient  afternoon that looked like it was selling new cars out all the signs and flyers and dishes of a topically new car lot including all by the way the manufacturer's label and all those things that one would see in a car dealership except one it actually represents in our judgment multiple things one what you receive will been blast essentially by a doctor to what you see will be a normal prescription albeit one through the mail you'll get fresh kills to use one term element that's all you need that's right we only need one and in fact there are multiple there's the counting issue which we haven't talked about but even if one were to ignore the counting issue there's this issue overturned pills as judge buchwald put it the people who paid for these he was taken because of this deception that's all you know to absolutely although i do want to point out there's actually another deception and i think it's important as the jury was entitled to rest its verdict on any or all of these and that is these vials and the jury was presented with literally the vials themselves and testimony from undercover agents among others these files looked like a normal pharmacy vibe they had normal labels they had instructions from a doctor they had the doctor's name except there was testimony that they were anything but that the instructions time and again were not from the doctor they were from this lasher who is not a doctor but we relevant what's relevant in the four four issue and  this was only introduced after the defense opened on good faith defense counsel said good faith two dozen times maybe in his opening he repeated again in closing he repeated throughout the i'll go the c e o of the people obviously looking  it was a lad who wanted a small point which is it's not entirely clear everyone here was looking for a fix these websites sold legitimate drugs and there are actually a lot of websites out there in fact there was an expert at trial who testified that there are legitimate internet pharmacies they're not all illegitimate they're not all the beagle they don't all do this so it's not at all clear that in fact everyone is looking for a fix but even if i were to adopt your honour's people he will gain in purse well this pharmacy had both legitimate customers to use my word and unfortunately illegitimate customers or addicts or people that were only trying to bring out by showing scruffy looking people i mean getting their scruffiness was not the point your honor the testimony here someone walk off the street that person would present some of the same exact red flags and others and she would instruct the same exact employees to ignore those red flags and fill those prescriptions to the entire promise of a four four b evidence and our judgment wasn't even for four b it was direct evidence the entire premise was that this was one course of conduct it was still anything that looks like a prescription anything that looks like a prescription regardless of red flags regardless of what it's for regardless of what it looks like as quickly as possible to make as much money as possible and this distinction between the internet addictive pain medications and in person addictive pain medications was not a distinction  drew it was not a distinction she permitted her employees to draw the whole premise is that the idea that she operated in good faith was defeated in part by how she acted at every moment of the day in person and over there understand that argument just to be clear though you don't disagree that this is where the and so that is when you say it was all part of the same forces that may or may not be so or at least that's a jury argument as to what it shows about abuses and that's what they were were not literally and further in evidence of conduct in furtherance of what was charged in the indictment because i took it you were conceding this was for for be evidence i'm just saying it's proper for  she gave out misbranded prescriptions period or does that essentially describe the internet scheme the indictment essentially describes the internet scheme but in this is important the misbranding counts were elevated was that that's correct and she did give a limited instruction and she actually gave a more cautious one than the one around it was posited might be gave one that applied throughout the entire the entire thing and we think that at least as to the misbranding counts that was more than the defendant was and that's that's our belief in it it's hard to imagine how evidence of lies to regulators could be anything but direct evidence of evidence to lies to regulators the sentence collapses upon itself but yes the judge buchwald gave a lemonade structure that was far more generous to defense than we think warranted we didn't object to that instruction but the point of this discussion is that the idea that the customers were scruffy is utterly besides the point it was one integrated course of conduct with the same employee use the same timeframe and in the same way the defense makes this effort in their brief and i heard it again this morning that some of what the government did a stood up and said she distributed controlled substances and therefore you should convict her of fraud in this brand of the government incentive thing like that the word controlled substance never left the government's mouth  statements were accurate miss lasher happens to be a u s pharmacist she actually had a doctorate in pharmacy and there was a u s physician dr john burling who testified for the government who passed on all these things did he do it according to the rules and read that he didn't examine the people he didn't do anything like that but just to talk to barely say that that's a fraud because those are untrue is incorrect on this record but there is and there was evidence wasn't there that the prescription instructions were not according to standard practice and that the instructions often deviated from what authorize physician would would have prescribed in terms of amount and dosage on that over time so that was part of where the deception lay that physicians were not in fact issuing instructions and directions that wasn't the claim that was made the claim that was just made was based on the internet page i did not take it that mr ridge on phone was saying she represented that there was a u s pharmacist involved and there was and i think he was saying that those representations amount to an implicit representation that you're getting what you ought to get from a licensed professional doctor and pharmacist now that might be you might say that's wrong but as a matter the ultimate consumer who goes to the internet pharmacy believes or thinks in them with regard to the mail fraud statute is not the relevant inquiry it's what false statements were provided clear as you started out your argument that the sentence was based on the misbranding and then she didn't take the mail fraud aspect of yes but i guess i just want the court to know that three years which is the sentence that miss lasher received which were which challenging on different grounds is honor thank you both very much were in lightning argument will reserve decision