Legal Case Summary

The next case we're going to hear is United States versus O'Connor and Ms. Burnham whenever you're ready will hear from you. May it please the court. Mr. Brown spent two and a half years working as a nurse practitioner at a pain management clinic in Virginia. During that time he of course wrote numerous prescriptions for pain medication. He was charged with and convicted of unlawful distribution based on three out of all of those prescriptions. But because the government simply ignored an essential element that offense his conviction cannot stand. Charles Brown was registered to prescribe controlled substances. Therefore it was not a crime every time he signed a prescription. Under the controlled substances act and the applicable regulation dispensing the medications he prescribed is not illegal when a medical professional does so through a prescription issued for a legitimate medical purpose within the usual course of that individual practitioner's professional practice. Accordingly this court has required that to convict a medical professional for writing a prescription the government must prove beyond a reasonable doubt that that practitioner did not have a good faith belief that the prescription was for legitimate medical purposes in the usual course of his professional practice or that it was within the bounds of medical practice. Therefore to convict Mr. Brown there needed to be evidence that he was acting outside the usual course of his practice as a nurse practitioner when he issued those three prescriptions. But as the government agrees it offered evidence only for the standard of a physician not for a nurse practitioner even though no physician was even charged in this case and then the government held Mr. Brown to that standard of physician. Virginia Law, how was it what was that standard? The standard for a physician was the standard that the government's expert testified to was she stated that a physician needs to review prescriptions needs to monitor the prescriptions that are being given particularly those that are like the one's Mr. Brown was convicted of prescribing opioid prescriptions. But Mr. Brown that's not a standard to review them. What's the standard to review them for? Well there's a number of components one would be you need to review them to make sure that they're being taken appropriately. There's urine screens that are done. Mr. Brown. If he's going to be prescribing, if he prescribes and is authorized to prescribe shouldn't he be sure that the medicine is being used appropriately? The screening is done, urine test is done and so forth. Yes, Your Honor, under the supervision of a physician. I know, presedicide the physician. I mean this we have a lot of instances where the physician either was very palace or wasn't involved in a most peripheral manner. Doesn't the nurse practitioner have a duty, a medical duty to the patient? Yes, Your Honor, and this is why the... What's the duty? The duty is to confine with what he has a good faith understanding is within the scope of medical practice

. Therefore Mr. Brown when he was prescribing, he was doing so under the supervision of someone who was telling him. I want to call up from Judge D. Mahler's question. What is the standard that you say was wrong here? As I understood it, it was this element that it must be prescribed for legitimate medical purpose. You say that's wrong? No, the legitimate medical purpose standard has to be filled with some sort of fact specific analysis. There's no definition of what. But does Mr. Brown have to exercise some judgment? Yes, Your Honor. He's a nurse practitioner. And especially when he's prescribing, when he's authorized to prescribe and in prescribing aren't there standards that he should abide by himself and not just say I call out orders? Correct, but the question is where does that standard come from? Where is he getting that standard? I said that the court gave the wrong standard. I asked you what the standard was and you said well to see that the drug was used appropriately and that there's a urine test and I'm saying isn't that what Mr. Brown should have done? Well the standard for a nurse practitioner isn't in the record because there was no evidence on that standard. What do you properly understand for a nurse practitioner in prescribing the drugs? The standard, I mean I would continue to say is with reference to what he was being told was the correct standard. He can get that through education from. I'm not telling you where he learned it. I'm asking what is the standard that a nurse practitioner has to abide by in prescribing drugs? That was what the government needed to ask you as a matter of law. What is the standard? Standard for a nurse practitioner is practicing good medicine under the supervision of someone. It depends on the state. There has to be a difference between a nurse and a nurse practitioner. It seems like with me you presented a case that Brown was just a nurse, not a nurse practitioner who just followed instructions. Doctors go give him a shot. He doesn't. He doesn't think about what the purpose of it at all. But this nurse practitioner is given a special statics. Can actually go and get medicine without that doctor even being anywhere around. He's been given a general authority to do it. And here's someone who's not. By the way, which charges are you relating to? Are you talking about distribution of the spirits? Both, you're on there. But okay, to answer the first part of your question, that is not. There's no difference between the conspiracy, bases and the distribution

. Well, it's not. The intent aspect of it. And in terms of how his agreement affects it on one end and conspiracy and then with distribution. Well, if Mr. Brown didn't know that what he was doing wrong was wrong, then it's hard to say how he intentionally agreed. And both instances, it seems to be your position is he just did what he was supposed to do. And that is whenever he got he was told to give someone some medicine, he gave it to him. That's the end of it. That's not if it came from Mr. Piccone or wherever, but this authority had come for some higher person other than him. So once he got that, he did what he was told. I think it's a little more nuanced than that, your honor. You answered a little bit more for me beyond that. And what more was he required? What duty beyond that? You assert he was required to have. Okay. In Virginia, there is a written practice agreement that a nurse practitioner, not a nurse, the nurse practitioner must have with the supervising physician. And there is testimony from the supervising physician that they were in daily contact that they. If you're not addressing a standard, the question that was asked you is what is the standard? You started your argument out with saying that government used the wrong standard. And you also said something I want to follow up on briefly that this man didn't know that he was not. He didn't know of all these things, even though the he's administering thousands of pills to a person that I think almost common sense would tell you that it's inappropriate. He knew that he had the safety net of the supervising physician. So he didn't think he had any independent duty as a medical practitioner. He thought he could hide under orders. It's sort of like the head of the government telling you to assassinate somebody you said I was just following orders. There, if you had evidence that the person knew that assassination was wrong, which probably happens. The nurse practitioner has a duty and a duty imposed by law in administering prescriptions and prescribing drugs to do something. Follow a safe medical practice is be sure that the patient needs it. Don't over prescribed. Ignore attempts to defraud him. Somebody comes in lies and he believes in person's lying. Wouldn't he say I can't administer this? Sure

. Of course. Okay. Now what is the standard and why is it different from any medical practitioner within the scope of the medicine being administered? This is why the good faith part of this is so important because what I'm trying to say is that because he was a nurse practitioner and had this agreement. He believed that as long as his supervising position was saying this is within the balance of medical practice. This was the basis for his education when he came. You're basically saying I was following orders. When you're following orders and there's no evidence that you're following orders was outside the scope of practice. Well, that's the issue. If it's outside the scope of normal medical practice. And government attempted to prove in this case. And the jury found that they did prove that these prescriptions were out of bounds. There was no evidence though on those three charged prescriptions that those were outside the bounds of medical practice of anyone's medical practice doctor Mr. Browns. There was really no evidence at all on those three charged prescriptions. Was he involved in the prescriptions to honesty? There was evidence that he was. His name is on the prescription. But there was also evidence that Mr. Baconey went in and forged Mr. Brown's name on prescriptions. There was also evidence. Are there any prescriptions that Mr. Brown signed to honesty? Yes, the right, I mean, the record includes all of his prescriptions. Well, all of a sudden it's not just for the ones where something else in the jury can rely on anything to convict. And if there's some where he signed the prescriptions and they were out of bounds. And I suggest those prescriptions to honesty were pretty clearly out of bounds. Don't you agree? I disagree, Your Honor, that in all circumstances the prescriptions to him were outside of the bounds of medical practice. There was evidence. That's not the standard of all of them. We're talking about where there's some from which the jury could have convicted. No, we're talking about this one particular charged prescription. And there was evidence that Mr

. honesty had real pain problems that all three of these patients who received those charged prescriptions had pain problems. There was no evidence on the specific charge prescription that that one was outside the bounds are not for the fifth or for which prescription. The April 5th, one or more. Yes, for each of those three charged prescriptions. There Mr. honesty did not testify about that prescription. And Mr. Dow did not testify about that specific prescription he received. And Mr. Rogers did not testify at the trial, obviously, didn't mention it. The expert did talk about that prescription, the one to Rogers. She did not specifically mention either in her expert report or at trial the prescriptions to Dow or to honesty. As for the prescription to Rogers, she all she said in the report was there is a prescription. There was an honesty, the one that get thousands of pills and then returning some to the clinic. And they were found in the drawer and they were found in Mr. Baconian. People with different types of medicines were being prescribed each time. Yes, and if you look at Mr. Honestiest Testimony, what he was saying is he had an agreement with Mr. Baconian, not Mr. Brown. It doesn't matter if Mr. Brown was dispensing him and it was beyond the medical pale. Well, what the evidence actually showed was that Mr. Brown decreased Mr. Honestiest Prescription. Then Mr. Baconian came in, forged Mr. Brown's name on the prescription and increased the dosage. What did Mr. Brown say? Mr

. Brown said that he never prescribed outside bounds of medical practice for any of the individuals. We're particularly with Mr. Honestiest referencing June 7, 2010. Is that correct? Yes, I believe that's correct. And it doesn't keep... I'm sorry, I'm sorry, but just let me correct that. I don't believe that Mr. Honestiest ever testified specifically about the date of the charge for prescription. All right, but count 7 references, June 7, 2010. There is no reference in Mr. Honestiest Testimony to that date. Does that matter? Is there any evidence in the record about that, the medicine administered on that date? There are prescriptions issued on that date with the name Mr. Brown. But there was no testimony tying a specific prescription outside the bounds of practice to those prescriptions. And he did suffer from real pain conditions. The expert witness did offer that testimony though. She did not testify about that specific prescription for oxycontin on June 7, 2010. She just made general observations that the practice was outside the bounds of the physicians. Mr. Honestiest, turning Mr. Brown that he'd suffered three overdoses and Mr. Brown continuing to prescribe the medicine. Along with testimony that prescribing to known addicts is not necessarily outside the bounds of medical practice. From Dr. Courier, I believe, who was the supervising physician at the time of the prescription that was charged was written. Okay, I think you have a little bit of rebuttal on the option. Okay, I also have a sentencing argument if you have any questions on that. I think you're time's up now, but try to catch it on rebuttal. Okay, Mr

. Honestiest, I want to go. Good morning, Jonathan. Jonathan Winergay, appearing on behalf of Mr. Paul McComb. Let me start out, Judd Neumier, by your first answer in the question that you both respect to the pill bottles that were found of the Shantille Specialist Clinic, respectively, for Eric Honestiest. Well, I'm not, that's not a big deal. The idea was that honesty was in an arrangement where, apparently, he was returning the pills, oxocon pills that he obtained through prescriptions is not right. That's what he claimed, however. There's evidence of it, but that isn't the, you know, this record is pretty big. There's a lot of evidence in this case. And to make an argument that there's a lack of sufficient evidence from which the jury could have found a conspiracy in the various violations is a big task, because you have to take on the hardest evidence against you. The jury can consider any of that evidence. It can disregard some, and we don't know what it considered. So the effort on your part and on Ms. Burman's part has to be to address all the evidence, the hardest evidence against you. If you're going to make a sufficiency, the evidence, are you? Yes, Judge. Our refer to Court to, being 474 and 475 of the journal appendix, that addresses the fact that, especially in the era of weeded, who actually seized the photograph that is the exhibit 46, 36-H, that is the photograph that had the pill that you referred to with Eric Ernestian, that's a specific bottle, especially the end of 475 questions from Mr. Williams could not tell if the bottles contained any pills. There was subsequently by Mr. Bacone that they are required to return their old prescriptions if they're being given new prescriptions. So when they are returned, there's a destruction law that went through of the trial because I was trial counsel. That doesn't answer my question or that I was directing. I didn't say, didn't they find the pills, but my question was, wasn't Mr. Honesty, wasn't there testimony that he was returning pills to the clinic? He was required to return pills to the clinic before he's given new pills. As his testimony showed, if you're giving 70 pills, and then at some point or to much, or not a practitioner brown decides to change the level of the medications that you're taking, you are required as part of making sure that there's no division or that the patient is not giving medication or salining. You are required to bring it back, then it's why you required to bring it back. So that there's no division required, the clinic, shantilly clinic required that it be returned so that it is properly accounted for, so that there's no division, which is what the government claims in this case that was not being done. And then there's a destruction law that was entered or used in this case that showed that the medications are returned, then destroyed before the doctor or not practitioner issues new medication. And you say there was evidence in this case to shield that that he returned them because he was supposed to for purposes of destruction because he was given another prescription? Yes, King Dow testified as to how the process works. That's my memory from the transcript. I've been in the trial

. That may be a take on it, but I think the government is going to say that the evidence showed that there was a prescription of a large amount. And in order to give him an increased amount, there was an agreement to give him some pack so that the clinic could have some there. That's what he was given a large numbers of pills, wasn't he? It depends on how you define, how you define life's number, J. Niemhaya. Let me give you an example, at least in talking to the experts that we used in this case. When somebody gets a four milligram oxycotin, for example, for purposes of example, an individual then complains of continued pain. In order for you to increase the medication, you may be either given two four milligram pills whereby you're taken two, it may be like that you're taken two. So it looks like you're giving more medication. However, the milligram is actually what you control. And not that the drug appendices are normal in this case. And if you go through the task of looking at each individual patient and individual increase that is talked about in this case, it is not the number of pills that controls, but the milligram. If you look on the drug appendix, 592, 579, to 583, and 592, to 593. Even the doctors on the ex, and we wouldn't go up on the ex, but Dr. Hamel wrote, considered specifically, have watched to the effect that there's really no number that is set as something that one can say that this is the right number of medication, and this is not the right number of medication, specifically appears on a brief on page 19. Especially just to cut through this, are you arguing that there's no evidence to convict, insufficient evidence to convict Mr. Pacon? I will submit that there's insufficient evidence to convict Mr. Pacon. I'm arguing that Dr. Hamel wrote a report and testimony should not have been done. Can you just answer my question first? Yes. Are you making an argument that the government didn't have sufficient evidence to convict in this case? Yes, sir. Yes, sir. Because if you look at the entire record, one thing that comes across is that people that testified, but then not one of them said that Mr. Pacon signed a signature, not one. The only person that claims medication was given to him, Mr. Burnham just said, Mr. Pacon forged Mr. Brown signature. That's the claim that she makes, she represents Mr. Brown, but then you can go through this record, Judge. That was the testimony, the testimony of honesty

. Honesty that Mr. Pacon forged, Judge, if you look at the transcripts. Is that true? Answer that question. Was there evidence in that, Mr. Honesty, that Mr. Brown, Mr. Pacon, forged Mr. Brown signature? I don't recall sitting through that trial and hearing such testimony, but I'll say that whatever the record indicates, but I don't recall Mr. Honesty saying that there was any fraudulent because specifically Mr. Pacon. I would say that Mr. Pacon directed Brown to sign the prescriptions. But then that's what was claimed. What happened when Mr. Brown testified, he said he was never directed by Mr. Pacon to sign anything. Dr. Maid said he was never directed to sign a given anybody prescription. Dr. Corrie also testified that she was never told or given any orders by Pacon. Because the government's essential argument is that Mr. Pacon distributed this narcotics by either talking to doctors into doing it or asking the doctors to do it on his behalf. But this is very central because it seems as though in the joint appendage when you look at page 334, there's some indication there from Honesty in terms of what it's supposed to been done. And he seems as one instance where I think I recall where you said that Brown hadn't reduced his medication. But Tony Paconic got it, took the prescription and forged Brown's name to increase the medication. That's what he testified to. Well, the not is true or not is testimony. The problem with Honesty's testimony is like a buffer mystery. It may be a problem, but my question is did he testify as such? On page 334, I'm indulging in the warning. I mean, you said you had to trial. You were never whether or not he testified

. I just saw it on page 334 that he testified that he did sign Charles Brown's signature. He who is he? He, Mr. Pacon, Charles Brown's signature to forgery. But then the next question is... You may have a good point, but now we're kind of getting the baby wake up. You got some evidence here to support what's going on. Not the not the not the not the nots partition of Brown says that identifies that signature. He said he's not the nots partition of Brown said he was the one that signed that particular prescription. Look here, I've just been appointed out to a portion of the transcript. 331. This is a honesty testifying. Did you ever witness Paul Becon signing prescriptions? Yes, I have. Question, what name did you see him sign Charles Brown? Say an evidence. It's like that's... I will say that the evidence in terms of the testimony from a witness. But then the question then becomes when Mr. Brown took this stand, he testified in this case. He was shown the prescriptions. He had identified those prescriptions as prescriptions that he signed. So honesty saying that my client Mr. Becon signed it is one thing. But then Mr. Brown who testified on the old said he was the one that signed those prescriptions. Dr. Joel March also testified that he signed those prescriptions. Never saw my client Mr. Becon sign any prescriptions

. Honesty was the same individual that my client had to call the police on. Honesty was the same individual that my client had to testify against. What probably you got is this is a jury trial. It was a jury trial. You're making an interesting argument. I don't think I've heard that before. You said you recognized this witness. It's testified that but your witness is un-oven. He testified he didn't sign it. And therefore your jury could possibly find it it did. No. No. No word stated in the law. You won't get anywhere with that. No, no. It's like I had judge Wayne. The argument that I'm making on the point that I'm trying to make is Mr. Honesty says one thing. But the documentary evidence on the record, which is the actual prescription in question, was identified by a non-practition and brown as a signature. Honesty said that as I said some places he didn't have a signature. They were for it. Who say brown? On one occasion, judge. I got to look. On occasions enough. I'm telling you you've got to face the hard evidence. Not the easy evidence. To gain testimony that went your way doesn't help you. It's the testimony the government put in that inculcated your client. You have to address. Specifically, I will address the... Well, actually you threw a red light now. I don't have to reserve. I guess I'll reserve it. I'll just say that the report from Hamill's roots should not have come in because it doesn't have come in the American Medical Association stand. That's not one bit. But I will address the other many issues since I have a statement. All right, Mr. Banner. Good morning, Mayor. Please the court. My name is Michael Binary. I'm an Assistant United States Attorney for the Eastern District of Virginia. This case was about Paul McCone operating a drug distribution business with the help. The essential help of nurse practitioner Charles Brown. If I might, Your Honors, I'd like to jump to addressing the sufficient to the evidence with respect to the three substantive distribution counts against Charles Brown. The court asked several questions about what is the standard for a nurse practitioner versus the standard for an MD. And I would argue that it's exactly the same standard. And it's the same standard because in Virginia and other states where nurse practitioners are allowed to prescribe using an MD's license, they are standing in the exact shoes that the MD would stand in were at the MD of the medical practice prescribing. Does it, does it, maybe you can help me on this? Seems like it may have created another element of proof on the part of the government. You have to show that it was not for those purposes. I would think that is correct and it's consistent with our jury charge in this case. But the argument on the other side is that he's not bound by that. Then he becomes sort of like a layman. And then you don't have to prove that. That's not trying to understand where does that go. Maybe I'm misreading that, but I see it on one hand as a benefit. You didn't prove it. But if you don't have to because the argument is he's not a doctor, he's not a physician. So therefore he's a wriggle guy. So he's just like, what's the going on? You don't need to prove that

.. Well, actually you threw a red light now. I don't have to reserve. I guess I'll reserve it. I'll just say that the report from Hamill's roots should not have come in because it doesn't have come in the American Medical Association stand. That's not one bit. But I will address the other many issues since I have a statement. All right, Mr. Banner. Good morning, Mayor. Please the court. My name is Michael Binary. I'm an Assistant United States Attorney for the Eastern District of Virginia. This case was about Paul McCone operating a drug distribution business with the help. The essential help of nurse practitioner Charles Brown. If I might, Your Honors, I'd like to jump to addressing the sufficient to the evidence with respect to the three substantive distribution counts against Charles Brown. The court asked several questions about what is the standard for a nurse practitioner versus the standard for an MD. And I would argue that it's exactly the same standard. And it's the same standard because in Virginia and other states where nurse practitioners are allowed to prescribe using an MD's license, they are standing in the exact shoes that the MD would stand in were at the MD of the medical practice prescribing. Does it, does it, maybe you can help me on this? Seems like it may have created another element of proof on the part of the government. You have to show that it was not for those purposes. I would think that is correct and it's consistent with our jury charge in this case. But the argument on the other side is that he's not bound by that. Then he becomes sort of like a layman. And then you don't have to prove that. That's not trying to understand where does that go. Maybe I'm misreading that, but I see it on one hand as a benefit. You didn't prove it. But if you don't have to because the argument is he's not a doctor, he's not a physician. So therefore he's a wriggle guy. So he's just like, what's the going on? You don't need to prove that. I think that's am I reading that wrong? No, Judge Williams. I think you're reading it correctly, however, because nurse practitioners in Virginia are allowed to issue prescriptions under an MD's license number. The argument is what kicks in the element. That's what kicks in the element. And certainly you could take defendant Brown's argument to say that we proved too much. Because we took on that extra element, but we did take on the extra element because it was abundantly clear in the jury found that these prescriptions were issued outside of the scope of medical practice. It's not related. But it's almost like that element really is something that's a higher level of proof from their perspective that you don't only have to prove that it's medical necessary, whatever. But it proved that wasn't someone who ordered them to do it or who was a medical doctor, I guess. That wasn't within the scope of the things they were created to do. That's correct. And an MD would have that same good faith defense. It was the elements that the Brown knew this was beyond the pale. These prescriptions that he on the counts. Ms. Burnham says there's no evidence on those counts. Yes, Judge Neemar. And it simply put the three substantive counts were issued instances where the medical records reflect that the prescriptions were either issued or directed. Or the patients were seen by Paul McCone. There was no medical visit whatsoever on the part of nurse practitioner Brown yet Brown signs the prescriptions. Dr. Handler Ruth testified to give the jury a framework to view what's legitimate, legitimate medical purpose. She testified that it was outside of the scope of legitimate medical purpose to issue these opiate pain medications without conducting any physical patient visit or seeing the patient at all. But even on top of that. Of course, when you're dealing with the air established that Brown signed. Yes, that the prescriptions themselves are actually in the record the originals. But how do I know it's not Mr. Beckone's forgery? Well, your honor. Even. Even if they were forged by Mr. Beckone and I would suggest that that wasn't what the record reflected

. I think that's am I reading that wrong? No, Judge Williams. I think you're reading it correctly, however, because nurse practitioners in Virginia are allowed to issue prescriptions under an MD's license number. The argument is what kicks in the element. That's what kicks in the element. And certainly you could take defendant Brown's argument to say that we proved too much. Because we took on that extra element, but we did take on the extra element because it was abundantly clear in the jury found that these prescriptions were issued outside of the scope of medical practice. It's not related. But it's almost like that element really is something that's a higher level of proof from their perspective that you don't only have to prove that it's medical necessary, whatever. But it proved that wasn't someone who ordered them to do it or who was a medical doctor, I guess. That wasn't within the scope of the things they were created to do. That's correct. And an MD would have that same good faith defense. It was the elements that the Brown knew this was beyond the pale. These prescriptions that he on the counts. Ms. Burnham says there's no evidence on those counts. Yes, Judge Neemar. And it simply put the three substantive counts were issued instances where the medical records reflect that the prescriptions were either issued or directed. Or the patients were seen by Paul McCone. There was no medical visit whatsoever on the part of nurse practitioner Brown yet Brown signs the prescriptions. Dr. Handler Ruth testified to give the jury a framework to view what's legitimate, legitimate medical purpose. She testified that it was outside of the scope of legitimate medical purpose to issue these opiate pain medications without conducting any physical patient visit or seeing the patient at all. But even on top of that. Of course, when you're dealing with the air established that Brown signed. Yes, that the prescriptions themselves are actually in the record the originals. But how do I know it's not Mr. Beckone's forgery? Well, your honor. Even. Even if they were forged by Mr. Beckone and I would suggest that that wasn't what the record reflected. There was evidence that nurse practitioner Brown would sign stacks of prescriptions brought into him at the medical practice. But even if he did it would there would still be sufficient evidence that Mr. Brown was aiding and abetting because he was. He was assisting Paul McCone who needed someone. A teammate essentially someone who's had a license to issue these prescriptions whose name could be put on the prescriptions because if a prescription went to the pharmacy with the name Paul McCone. The prescription use that he didn't know. And I would argue that that's just simply against the weight of the evidence. If you go back and look at this, a single witness Eric Honesty as the court pointed out he testified directly. I think the question was something like who did you have the agreement with and his answer was it was with Charles Brown and Paul McCone and that is on page 339 of the joint appendix. Additionally, there was other evidence that the two were working hand in hand together to distribute these drugs. William Dahl who was the medical office director testified that once Dr. Match came on board. Dr. Match was the second supervising physician that was employed by Paul McCone and Chanterly specials. When patients complained to Paul McCone about Dr. Match cutting their medications, the patients would be rescheduled for a visit with nurse practitioner Brown. And the result was that they would be issued the same prescription that they were requesting not be cut. So there is significant evidence that Brown full and well knew that he was acting outside of the scope. There were other patients who were Charles Brown's patients who testified that they would come into the practice and as new patients through their entire time of the practice where their prescriptions were jumping up and up and up and up and not once did nurse practitioner Brown who was there treating person at Chanterly specials. So there was not once that he conduct a physical examination of them at the practice. And so I think that all of that goes to support the jury's finding that he was well aware of what was going on. He was in the conspiracy fully and had the agreement directly with these drug addicts to get them the pills that they needed with respect to good faith. I would like to address that. And again, I mentioned that Dr. Match was the second supervising physician. The first supervising physician was Dr. Carol Courier. Both Carol Courier and Dr. Match testified that they did not approve of these prescriptions being issued these incredibly large prescriptions to these people with obvious issues, addiction issues, the version issues. And I believe their testimony was that had they known that this was going on, they would not have approved it. So there is no good faith defense here for Charles Brown because he did not have approval from his supervising physician

. There was evidence that nurse practitioner Brown would sign stacks of prescriptions brought into him at the medical practice. But even if he did it would there would still be sufficient evidence that Mr. Brown was aiding and abetting because he was. He was assisting Paul McCone who needed someone. A teammate essentially someone who's had a license to issue these prescriptions whose name could be put on the prescriptions because if a prescription went to the pharmacy with the name Paul McCone. The prescription use that he didn't know. And I would argue that that's just simply against the weight of the evidence. If you go back and look at this, a single witness Eric Honesty as the court pointed out he testified directly. I think the question was something like who did you have the agreement with and his answer was it was with Charles Brown and Paul McCone and that is on page 339 of the joint appendix. Additionally, there was other evidence that the two were working hand in hand together to distribute these drugs. William Dahl who was the medical office director testified that once Dr. Match came on board. Dr. Match was the second supervising physician that was employed by Paul McCone and Chanterly specials. When patients complained to Paul McCone about Dr. Match cutting their medications, the patients would be rescheduled for a visit with nurse practitioner Brown. And the result was that they would be issued the same prescription that they were requesting not be cut. So there is significant evidence that Brown full and well knew that he was acting outside of the scope. There were other patients who were Charles Brown's patients who testified that they would come into the practice and as new patients through their entire time of the practice where their prescriptions were jumping up and up and up and up and not once did nurse practitioner Brown who was there treating person at Chanterly specials. So there was not once that he conduct a physical examination of them at the practice. And so I think that all of that goes to support the jury's finding that he was well aware of what was going on. He was in the conspiracy fully and had the agreement directly with these drug addicts to get them the pills that they needed with respect to good faith. I would like to address that. And again, I mentioned that Dr. Match was the second supervising physician. The first supervising physician was Dr. Carol Courier. Both Carol Courier and Dr. Match testified that they did not approve of these prescriptions being issued these incredibly large prescriptions to these people with obvious issues, addiction issues, the version issues. And I believe their testimony was that had they known that this was going on, they would not have approved it. So there is no good faith defense here for Charles Brown because he did not have approval from his supervising physician. Let move you just a bit out of order and you can come back. Yes. I want to deal with one of the sentencing. Yes, your honor. Does the calculation of the drug quantity in that PSR include all of the prescriptions written by Mr. Brown for these patients? It includes all of the prescriptions written for select patients, not all of the prescriptions that Charles Brown issued for all patients of Chantilly. And the reason in the PSR adopted by the district judge was that there was a record to demonstrate by proponents of the evidence that the standard of care was breached for those patients. Those are patients who came in and certainly in the past they could have had medical problems, but the record reflected that while they were at Chantilly Specialists, there was no legitimate basis upon which they could be issued any pills. So these prescriptions are the ones that were written at the Hess, most of the Baconey and the ones that were not written for the Hess and the Baconey. Well, I'm not sure that the inclusion by the probation office rose and fell on whether they were specifically issued at the Hess of Baconey, whether these were patients that Charles Brown was seeing during the life of the conspiracy and he issued the prescriptions. I think that their inclusion in the sentencing amount rose and fell on whether there was any legitimate medical basis to issue the prescriptions. There was a preponderance of the evidence found by the probation office adopted by the district court and certainly backed up by the record that none of the pills issued to the specific patients selected for inclusion had any medical purpose. These were pills issued to addicts and drug dealers in the hundreds and thousands of unit amount. And so I would argue that they were correctly included. Notably, the sentencing guideline calculation that defendant Brown argued for at sentencing was a level 32, which would have resulted in a low end calculation of 121 months, of course, as you know, your honors he was sentenced to 60 months at the end of the day. And so with respect to with respect to sentencing, if I could just close that loop. The position of the government is if there was and we can see that the record from the district court was is exceedingly brief for each of the two defendants. However, we would argue that the court this court can be confident that he in fact considered all of the sentencing arguments by both Bacone and Brown, even if it was not as explicitly stated in the record as we would have liked to see, because in the context of a well briefed and well argued sentencing hearing, the sentence that he imposed for both Bacone and Brown were significantly below what the government requested significantly below what the district court found the properly guidelines range was and actually closer, certainly in Brown's case, but also in Bacone's case, closer to what the defendants themselves requested, Brown requested a sentence of minimal incarceration. And Bacone requested a light sentence and in the context of this drug distribution business resulted in numerous numerous overdose deaths, very high guidelines range based on very high pill amounts that for Paul Bacone, the sentence imposed 15 years is certainly significant, but much lighter than it certainly could have been and for Charles Braser's guideline range go up to life. It was 360 to life again and even if you, there is a point in the sentencing argument where Mr. Bacone's counsel talks about a level 32 again because they're requesting essentially a fraction of a third of the number of pills that the probation department included, which would bring it down to level 32 again, you're still dealing with a guideline range of at a low end of the 21 month, certainly with the leader enhancement that the district court has. The district court found was appropriate for Paul Bacone. I would argue that this court can have confidence that the district judge did actually consider the sentencing arguments and coming up with the appropriate sentence. Council, if you read the paragraph in the presenis report as I recall that discusses the four point leadership enhancement and you count the number of individuals named in that paragraph, you don't come to five. Have you thought about that? Who are the five feet? Well, you're on it. If you're talking about people that are actually co-conspirators, I would argue that you could easily get to five. You certainly have Charles Brown, you have, I would submit Eric Honesty. Yes, sorry, that paragraph explicitly excludes Mr. Honesty, probation officer discounts Mr. Dow as well. And even though those people are discounted, I would argue that there was clear evidence by opponents that they were members of the conspiracy

. Let move you just a bit out of order and you can come back. Yes. I want to deal with one of the sentencing. Yes, your honor. Does the calculation of the drug quantity in that PSR include all of the prescriptions written by Mr. Brown for these patients? It includes all of the prescriptions written for select patients, not all of the prescriptions that Charles Brown issued for all patients of Chantilly. And the reason in the PSR adopted by the district judge was that there was a record to demonstrate by proponents of the evidence that the standard of care was breached for those patients. Those are patients who came in and certainly in the past they could have had medical problems, but the record reflected that while they were at Chantilly Specialists, there was no legitimate basis upon which they could be issued any pills. So these prescriptions are the ones that were written at the Hess, most of the Baconey and the ones that were not written for the Hess and the Baconey. Well, I'm not sure that the inclusion by the probation office rose and fell on whether they were specifically issued at the Hess of Baconey, whether these were patients that Charles Brown was seeing during the life of the conspiracy and he issued the prescriptions. I think that their inclusion in the sentencing amount rose and fell on whether there was any legitimate medical basis to issue the prescriptions. There was a preponderance of the evidence found by the probation office adopted by the district court and certainly backed up by the record that none of the pills issued to the specific patients selected for inclusion had any medical purpose. These were pills issued to addicts and drug dealers in the hundreds and thousands of unit amount. And so I would argue that they were correctly included. Notably, the sentencing guideline calculation that defendant Brown argued for at sentencing was a level 32, which would have resulted in a low end calculation of 121 months, of course, as you know, your honors he was sentenced to 60 months at the end of the day. And so with respect to with respect to sentencing, if I could just close that loop. The position of the government is if there was and we can see that the record from the district court was is exceedingly brief for each of the two defendants. However, we would argue that the court this court can be confident that he in fact considered all of the sentencing arguments by both Bacone and Brown, even if it was not as explicitly stated in the record as we would have liked to see, because in the context of a well briefed and well argued sentencing hearing, the sentence that he imposed for both Bacone and Brown were significantly below what the government requested significantly below what the district court found the properly guidelines range was and actually closer, certainly in Brown's case, but also in Bacone's case, closer to what the defendants themselves requested, Brown requested a sentence of minimal incarceration. And Bacone requested a light sentence and in the context of this drug distribution business resulted in numerous numerous overdose deaths, very high guidelines range based on very high pill amounts that for Paul Bacone, the sentence imposed 15 years is certainly significant, but much lighter than it certainly could have been and for Charles Braser's guideline range go up to life. It was 360 to life again and even if you, there is a point in the sentencing argument where Mr. Bacone's counsel talks about a level 32 again because they're requesting essentially a fraction of a third of the number of pills that the probation department included, which would bring it down to level 32 again, you're still dealing with a guideline range of at a low end of the 21 month, certainly with the leader enhancement that the district court has. The district court found was appropriate for Paul Bacone. I would argue that this court can have confidence that the district judge did actually consider the sentencing arguments and coming up with the appropriate sentence. Council, if you read the paragraph in the presenis report as I recall that discusses the four point leadership enhancement and you count the number of individuals named in that paragraph, you don't come to five. Have you thought about that? Who are the five feet? Well, you're on it. If you're talking about people that are actually co-conspirators, I would argue that you could easily get to five. You certainly have Charles Brown, you have, I would submit Eric Honesty. Yes, sorry, that paragraph explicitly excludes Mr. Honesty, probation officer discounts Mr. Dow as well. And even though those people are discounted, I would argue that there was clear evidence by opponents that they were members of the conspiracy. They were acting with these two men to get pills that they were then selling to others. Provision officer came out on the opposite and there's no discussion about the judge as you recall. So there's no finding in the record as to what you just said is there. I would have to specifically go back and look, I know that the district judge was economical with his on the record discussion at the sentencing argument. And however, I do believe that the record has proponents of the evidence that there were new far more than five other individuals involved. Even just counting, not counting the patients, even just in counting other people that chantilly specialists over whom Paul Bacone had exercise influence. And I would argue that both of the supervising physicians that Mr. Bacone brought in, you have. What you're pointing out is that the enhancement has the words or otherwise extensive. Correct. And now you're making the argument that you don't need to be fixated on five. That is true. As a fallback, I would argue that there certainly is evidence in the record that there were far more than five, but they don't all need to be viewed as cook and spears to qualify as the five, but even outside of that when you're dealing with an enterprise involving this many patients traveling as far distances as they were even up to 13 hours, it certainly would have been justified. Would Dr. Fassan be one? He would be Dr. Frazier would be another one. Melissa LaVoy who is the Medicare Biller. I think there's clear evidence that she was acting at the direction of Bacone based on his own testimony that he brought her in as the Medicare Biller. Certainly we know that bills were submitted to Medicare that were false. She would have gotten that false information because Paul Bacone was conducting the patient visits from Paul Bacone. She acted at his bitty even if it wasn't completely knowingly as a co-conspirator. So I would argue under either standard the record supports the imposition of the enhancement. What is the evidence to support count 9 against Bacone? It's against both Bacone and Brown, but I'm just interested in what the evidence against Bacone. That's the April 5th. Certainly, Your Honor. Count, if I may just flip to it on my notes, please. Count 9 dealt with Michael Rogers. Interesting. With the council today points out that Michael Rogers didn't testify during a trial. Of course, he was an overdose victim. It was long dead by the time our trial occurred because he had been over prescribed by Bacone and Brown

. They were acting with these two men to get pills that they were then selling to others. Provision officer came out on the opposite and there's no discussion about the judge as you recall. So there's no finding in the record as to what you just said is there. I would have to specifically go back and look, I know that the district judge was economical with his on the record discussion at the sentencing argument. And however, I do believe that the record has proponents of the evidence that there were new far more than five other individuals involved. Even just counting, not counting the patients, even just in counting other people that chantilly specialists over whom Paul Bacone had exercise influence. And I would argue that both of the supervising physicians that Mr. Bacone brought in, you have. What you're pointing out is that the enhancement has the words or otherwise extensive. Correct. And now you're making the argument that you don't need to be fixated on five. That is true. As a fallback, I would argue that there certainly is evidence in the record that there were far more than five, but they don't all need to be viewed as cook and spears to qualify as the five, but even outside of that when you're dealing with an enterprise involving this many patients traveling as far distances as they were even up to 13 hours, it certainly would have been justified. Would Dr. Fassan be one? He would be Dr. Frazier would be another one. Melissa LaVoy who is the Medicare Biller. I think there's clear evidence that she was acting at the direction of Bacone based on his own testimony that he brought her in as the Medicare Biller. Certainly we know that bills were submitted to Medicare that were false. She would have gotten that false information because Paul Bacone was conducting the patient visits from Paul Bacone. She acted at his bitty even if it wasn't completely knowingly as a co-conspirator. So I would argue under either standard the record supports the imposition of the enhancement. What is the evidence to support count 9 against Bacone? It's against both Bacone and Brown, but I'm just interested in what the evidence against Bacone. That's the April 5th. Certainly, Your Honor. Count, if I may just flip to it on my notes, please. Count 9 dealt with Michael Rogers. Interesting. With the council today points out that Michael Rogers didn't testify during a trial. Of course, he was an overdose victim. It was long dead by the time our trial occurred because he had been over prescribed by Bacone and Brown. The evidence was that that prescription was directed by Bacone and signed by Brown. The prescriptions in evidence, the medical notes of that April 5th, 2010 visit indicate that the prescription was directed by Bacone. Of course, if the jury finds that to be true, he's guilty of distribution of drugs because he has no medical license and can't prescribe at all. With respect to Brown. What was the evidence that he directed that one? It comes from a review, primarily a review of his medical file. And you can see in the medical file, as it's discussed at some length in trial, they had an electronic medical record system. And so you actually could see the user in the system who was inputting changes to the prescription, inputting the notes concerning the prescription. And the notes associated with that visit indicate that it was Paul Bacone. And if the jury found that to be the case, that is sufficient evidence to find him guilty of distribution of control substances for that count. Of course, Michael Rogers ends up coming back three days later on April 8th, getting a new prescription, which was far earlier than was scheduled. And his found dead on his mother's couch of a drug overdose that same day. He was traveling from Tennessee, which does share a border with Virginia, which certainly not with Chantilly, Virginia. You said there was more than one, how many people died from overdose? Well, there were counts in the indictment dealing with two overdose deaths. Jonathan Heiser and Michael Rogers. The jury ultimately found the defendants of the legality of distributing the drugs, actually not with respect to Jonathan Heiser. But they did not find them responsible for the death resulting, which would have been a sentencing enhancement presented to the jury. In Dr. Hamlet-Ruth's Ruth's report, there is a discussion of a number of additional patients who also died of drug overdoses, but those were not specifically charged. The substantive counts, they were incorporated into the conspiracy count. And so, unless the court has additional questions. All right, thank you. All right. Let's see who's next. I guess is Vernon here next. I'll address the sentencing arguments first, because we didn't get to that last time. The government is incorrect that there's no evidence there was a legitimate medical purpose for any of the prescriptions for those four individuals. For example, they also suffered from real pain conditions. You can see that in the briefs and in the record. So, in addition, the fact that he ended up getting a below guideline sentence is not, that's completely irrelevant, because the question is not whether the sentence ended up being within the guidelines range or not. The question is, was the process infected by this error? And it's quite conceivable that the judge would have given him any lower sentence, had he started from a correctly calculated lower guidelines range. And the failure to explain error is not harmless either, because very nature of that error is that it's not susceptible to a pellet review, because you don't know what the judge was thinking, what he considered or what he did not consider

. The evidence was that that prescription was directed by Bacone and signed by Brown. The prescriptions in evidence, the medical notes of that April 5th, 2010 visit indicate that the prescription was directed by Bacone. Of course, if the jury finds that to be true, he's guilty of distribution of drugs because he has no medical license and can't prescribe at all. With respect to Brown. What was the evidence that he directed that one? It comes from a review, primarily a review of his medical file. And you can see in the medical file, as it's discussed at some length in trial, they had an electronic medical record system. And so you actually could see the user in the system who was inputting changes to the prescription, inputting the notes concerning the prescription. And the notes associated with that visit indicate that it was Paul Bacone. And if the jury found that to be the case, that is sufficient evidence to find him guilty of distribution of control substances for that count. Of course, Michael Rogers ends up coming back three days later on April 8th, getting a new prescription, which was far earlier than was scheduled. And his found dead on his mother's couch of a drug overdose that same day. He was traveling from Tennessee, which does share a border with Virginia, which certainly not with Chantilly, Virginia. You said there was more than one, how many people died from overdose? Well, there were counts in the indictment dealing with two overdose deaths. Jonathan Heiser and Michael Rogers. The jury ultimately found the defendants of the legality of distributing the drugs, actually not with respect to Jonathan Heiser. But they did not find them responsible for the death resulting, which would have been a sentencing enhancement presented to the jury. In Dr. Hamlet-Ruth's Ruth's report, there is a discussion of a number of additional patients who also died of drug overdoses, but those were not specifically charged. The substantive counts, they were incorporated into the conspiracy count. And so, unless the court has additional questions. All right, thank you. All right. Let's see who's next. I guess is Vernon here next. I'll address the sentencing arguments first, because we didn't get to that last time. The government is incorrect that there's no evidence there was a legitimate medical purpose for any of the prescriptions for those four individuals. For example, they also suffered from real pain conditions. You can see that in the briefs and in the record. So, in addition, the fact that he ended up getting a below guideline sentence is not, that's completely irrelevant, because the question is not whether the sentence ended up being within the guidelines range or not. The question is, was the process infected by this error? And it's quite conceivable that the judge would have given him any lower sentence, had he started from a correctly calculated lower guidelines range. And the failure to explain error is not harmless either, because very nature of that error is that it's not susceptible to a pellet review, because you don't know what the judge was thinking, what he considered or what he did not consider. On this sufficiency of the evidence, the government says that the evidence was that Mr. Brown didn't have approval, but that's not the way the practice agreement worked. He had approval as long as the physician wasn't telling him to stop prescribing or advising him that there was a problem. So, every time he wrote a prescription, he tacitly had approval for those. And to the extent that he could he write a prescription for a thousand units of of oxocotin say and and give those to give those to the patient who said, I heard. If he in good faith believed that that was acceptable medical practice, then. So he does have an independent duty to apply accepted medical practice when he's prescribing. Correct. With again, with respect to what he knows to be accepted practice, which is in part defined by what he's being supervised. And there's evidence that a lot of the patients he didn't actually physically examine at all to any science tax of prescriptions. There was also accepted medical practice and prescribing drugs. Actually, I believe that it was Dr. Matt, she testified that it is within the bounds of medical practice to not examine a patient every time you see them. And the government's expert also pined in her report that it perhaps it was her testimony, I'm sorry, but that it depends on the circumstance. You don't just order tests to work a test. You don't just perform routine. Brown was issuing these prescriptions without knowledge that he was feeding drug addiction. I think I think he whether he knew the patients were at X or not is not in same questions whether he believed that the prescription. My question was do you think Brown knew when he was prescribing these drugs that he was feeding drug addiction? No, I think the record does show that he was perhaps a negligent nurse practitioner. He could have followed up more, he could have though it's hard to see how he was in daily contact with the supervising physician. I mean, I guess you could say he could have sought outside help from outside the practice or something, but. I mean, a customer comes in one day gets a prescription, comes in a few days later gets another prescription and then that very same day overdoses. You know, you can bury your head and not sand as to what's going on. How long was he at that clinic two years? Two and a half years. And when he started there, he had no background and pain management on all this. I think it does, you know, there's things about it that are not great. He might be negligent, but the question is not it was he a bad nurse practitioner was he a negligent nurse practitioner. The question is whether he effectively ceased to be a medical professional at all. And it was just pushing drugs and the evidence just does not show that. Okay. I think we have one more rebuttal of Mr

. On this sufficiency of the evidence, the government says that the evidence was that Mr. Brown didn't have approval, but that's not the way the practice agreement worked. He had approval as long as the physician wasn't telling him to stop prescribing or advising him that there was a problem. So, every time he wrote a prescription, he tacitly had approval for those. And to the extent that he could he write a prescription for a thousand units of of oxocotin say and and give those to give those to the patient who said, I heard. If he in good faith believed that that was acceptable medical practice, then. So he does have an independent duty to apply accepted medical practice when he's prescribing. Correct. With again, with respect to what he knows to be accepted practice, which is in part defined by what he's being supervised. And there's evidence that a lot of the patients he didn't actually physically examine at all to any science tax of prescriptions. There was also accepted medical practice and prescribing drugs. Actually, I believe that it was Dr. Matt, she testified that it is within the bounds of medical practice to not examine a patient every time you see them. And the government's expert also pined in her report that it perhaps it was her testimony, I'm sorry, but that it depends on the circumstance. You don't just order tests to work a test. You don't just perform routine. Brown was issuing these prescriptions without knowledge that he was feeding drug addiction. I think I think he whether he knew the patients were at X or not is not in same questions whether he believed that the prescription. My question was do you think Brown knew when he was prescribing these drugs that he was feeding drug addiction? No, I think the record does show that he was perhaps a negligent nurse practitioner. He could have followed up more, he could have though it's hard to see how he was in daily contact with the supervising physician. I mean, I guess you could say he could have sought outside help from outside the practice or something, but. I mean, a customer comes in one day gets a prescription, comes in a few days later gets another prescription and then that very same day overdoses. You know, you can bury your head and not sand as to what's going on. How long was he at that clinic two years? Two and a half years. And when he started there, he had no background and pain management on all this. I think it does, you know, there's things about it that are not great. He might be negligent, but the question is not it was he a bad nurse practitioner was he a negligent nurse practitioner. The question is whether he effectively ceased to be a medical professional at all. And it was just pushing drugs and the evidence just does not show that. Okay. I think we have one more rebuttal of Mr. I want to get. Thank you, Dr. Neumann. Respect to Mr. Becon. I would like to ship gears and go into the sentence and argument. The issues raised by just Flanagan are very relevant. Five or more people what we're doing by counting could have been this person could have been that person is basically was speculated as a judge. But Neumann asked the panel are men of the argument before us specifically what is the issue before us isn't it immutability judge the issue is the record indicates that we don't have five or more people for the role enhancement. We cannot see the aspect of what you should have been this system five people should have been identified on the record for the purpose of the enhancement. The four bad position doesn't even work because specifically the enhanced. What if we had a business run by Amofioso that had 30 employees that he was directing. You have to identify the 30 employees. The evidence has to show of the sentence in judge has to identify the employees who were being directed just because an individual is an employee doesn't mean that they've been the right. The centiprice this is a this is a racketeering enterprise that has 30 employees. My question is does in the judge in sentencing does he has to have to identify the 30 employees or name at least five of them to get the enhance. I will say that could the evidence show that there were 30 and he could just leave it at that and issue the enhance. Judge I will say that the record has to direct us to something that the judges rely on. We cannot speculate as to what number of people that were directed or managed within the. So you think that if the evidence was there were 30 people in a business and the judge doesn't say anything further about it. It's pretty well established. There was 30 people that the defendant was directing that we're speculating. I will say that the speculation because it has to be shown that the importance of the evidence and the importance of the evidence that's why you have a sentence in here in that those issues are supposed to be fleshed out. Like Mr. Benari eloquently stated the issues were well briefed if the judge wanted to make that fine you should have been made on the record. Here I talked to the press intensive investigation report as this and then we're stuck with it in addition to that there's no specificity as to which medications or which number that are not for legitimate medical purpose. That plays a number with the quantity of drugs in this case. Dr. Hamel roots and the government did not tell us how much of this medication was not for legitimate medical purpose. And lastly the other point that I have is the issue respect to the improper closing argument by the government as to the volunteering of Mr. McConaughey's appearance before the police officer to especially your worker to take his fingerprint

. I want to get. Thank you, Dr. Neumann. Respect to Mr. Becon. I would like to ship gears and go into the sentence and argument. The issues raised by just Flanagan are very relevant. Five or more people what we're doing by counting could have been this person could have been that person is basically was speculated as a judge. But Neumann asked the panel are men of the argument before us specifically what is the issue before us isn't it immutability judge the issue is the record indicates that we don't have five or more people for the role enhancement. We cannot see the aspect of what you should have been this system five people should have been identified on the record for the purpose of the enhancement. The four bad position doesn't even work because specifically the enhanced. What if we had a business run by Amofioso that had 30 employees that he was directing. You have to identify the 30 employees. The evidence has to show of the sentence in judge has to identify the employees who were being directed just because an individual is an employee doesn't mean that they've been the right. The centiprice this is a this is a racketeering enterprise that has 30 employees. My question is does in the judge in sentencing does he has to have to identify the 30 employees or name at least five of them to get the enhance. I will say that could the evidence show that there were 30 and he could just leave it at that and issue the enhance. Judge I will say that the record has to direct us to something that the judges rely on. We cannot speculate as to what number of people that were directed or managed within the. So you think that if the evidence was there were 30 people in a business and the judge doesn't say anything further about it. It's pretty well established. There was 30 people that the defendant was directing that we're speculating. I will say that the speculation because it has to be shown that the importance of the evidence and the importance of the evidence that's why you have a sentence in here in that those issues are supposed to be fleshed out. Like Mr. Benari eloquently stated the issues were well briefed if the judge wanted to make that fine you should have been made on the record. Here I talked to the press intensive investigation report as this and then we're stuck with it in addition to that there's no specificity as to which medications or which number that are not for legitimate medical purpose. That plays a number with the quantity of drugs in this case. Dr. Hamel roots and the government did not tell us how much of this medication was not for legitimate medical purpose. And lastly the other point that I have is the issue respect to the improper closing argument by the government as to the volunteering of Mr. McConaughey's appearance before the police officer to especially your worker to take his fingerprint. I'll submit that when you were told that you have something for you to show up and you on your own go over and then you're giving something to sign after you get to the location that you went there from the terrible being. And I'm glad that the grand jurisprudence been appending is one thing show them up on your own to have it done and have it executed is something that's not. You know there's a difference between a prosecutor vouching for the credibility or are not of a witness and there's a different proposition of the government arguing that the evidence showed somebody lied. And this argument government was pointing specifically to that testimony and making the argument that that was a lie. Now that can be counter argue but I'm not sure that on this record that was about you. The problem. The only problem not that is vouching but then when the prosecutor then says that Mr. McConaughey was on the stand he testified on the oath the prosecutor had the I asked him specifically about what I he went there voluntarily and he said yes. And then I'm supposed to rely on the evidence adduced from the proposal my close and argument the prosecutor had a crack at Mr. McConaughey they did not ask him that specific question. In closing argument they bring up this issue of him having to show up for someone to a grand jurisprudence. Now I'm relying on the fact because I was not printed this council that there was some grand jurisprudence that was actually issued to him, served on him for the proposal of appearance. Come to find out after the fight and after the court your argument is that he was relying on evidence or what in the record or I thought your argument was about you in argument that he was giving his opinion at the person lying. In addition to the fact that the government let us to believe that Mr. McConaughey showed up at solid station was one to a grand jurisprudence. The argument that I made before the jury was that he voluntarily showed up at the solid station and was subsequently said. So based on those words I asked this court not offend the conviction in this case. Let me you were court appointed. Yes, I'd like to recognize your service to the court. Thank you. Thank you, J.M. No. All right. We'll come down in Greek council and then proceed on to the next case.

The next case we're going to hear is United States versus O'Connor and Ms. Burnham whenever you're ready will hear from you. May it please the court. Mr. Brown spent two and a half years working as a nurse practitioner at a pain management clinic in Virginia. During that time he of course wrote numerous prescriptions for pain medication. He was charged with and convicted of unlawful distribution based on three out of all of those prescriptions. But because the government simply ignored an essential element that offense his conviction cannot stand. Charles Brown was registered to prescribe controlled substances. Therefore it was not a crime every time he signed a prescription. Under the controlled substances act and the applicable regulation dispensing the medications he prescribed is not illegal when a medical professional does so through a prescription issued for a legitimate medical purpose within the usual course of that individual practitioner's professional practice. Accordingly this court has required that to convict a medical professional for writing a prescription the government must prove beyond a reasonable doubt that that practitioner did not have a good faith belief that the prescription was for legitimate medical purposes in the usual course of his professional practice or that it was within the bounds of medical practice. Therefore to convict Mr. Brown there needed to be evidence that he was acting outside the usual course of his practice as a nurse practitioner when he issued those three prescriptions. But as the government agrees it offered evidence only for the standard of a physician not for a nurse practitioner even though no physician was even charged in this case and then the government held Mr. Brown to that standard of physician. Virginia Law, how was it what was that standard? The standard for a physician was the standard that the government's expert testified to was she stated that a physician needs to review prescriptions needs to monitor the prescriptions that are being given particularly those that are like the one's Mr. Brown was convicted of prescribing opioid prescriptions. But Mr. Brown that's not a standard to review them. What's the standard to review them for? Well there's a number of components one would be you need to review them to make sure that they're being taken appropriately. There's urine screens that are done. Mr. Brown. If he's going to be prescribing, if he prescribes and is authorized to prescribe shouldn't he be sure that the medicine is being used appropriately? The screening is done, urine test is done and so forth. Yes, Your Honor, under the supervision of a physician. I know, presedicide the physician. I mean this we have a lot of instances where the physician either was very palace or wasn't involved in a most peripheral manner. Doesn't the nurse practitioner have a duty, a medical duty to the patient? Yes, Your Honor, and this is why the... What's the duty? The duty is to confine with what he has a good faith understanding is within the scope of medical practice. Therefore Mr. Brown when he was prescribing, he was doing so under the supervision of someone who was telling him. I want to call up from Judge D. Mahler's question. What is the standard that you say was wrong here? As I understood it, it was this element that it must be prescribed for legitimate medical purpose. You say that's wrong? No, the legitimate medical purpose standard has to be filled with some sort of fact specific analysis. There's no definition of what. But does Mr. Brown have to exercise some judgment? Yes, Your Honor. He's a nurse practitioner. And especially when he's prescribing, when he's authorized to prescribe and in prescribing aren't there standards that he should abide by himself and not just say I call out orders? Correct, but the question is where does that standard come from? Where is he getting that standard? I said that the court gave the wrong standard. I asked you what the standard was and you said well to see that the drug was used appropriately and that there's a urine test and I'm saying isn't that what Mr. Brown should have done? Well the standard for a nurse practitioner isn't in the record because there was no evidence on that standard. What do you properly understand for a nurse practitioner in prescribing the drugs? The standard, I mean I would continue to say is with reference to what he was being told was the correct standard. He can get that through education from. I'm not telling you where he learned it. I'm asking what is the standard that a nurse practitioner has to abide by in prescribing drugs? That was what the government needed to ask you as a matter of law. What is the standard? Standard for a nurse practitioner is practicing good medicine under the supervision of someone. It depends on the state. There has to be a difference between a nurse and a nurse practitioner. It seems like with me you presented a case that Brown was just a nurse, not a nurse practitioner who just followed instructions. Doctors go give him a shot. He doesn't. He doesn't think about what the purpose of it at all. But this nurse practitioner is given a special statics. Can actually go and get medicine without that doctor even being anywhere around. He's been given a general authority to do it. And here's someone who's not. By the way, which charges are you relating to? Are you talking about distribution of the spirits? Both, you're on there. But okay, to answer the first part of your question, that is not. There's no difference between the conspiracy, bases and the distribution. Well, it's not. The intent aspect of it. And in terms of how his agreement affects it on one end and conspiracy and then with distribution. Well, if Mr. Brown didn't know that what he was doing wrong was wrong, then it's hard to say how he intentionally agreed. And both instances, it seems to be your position is he just did what he was supposed to do. And that is whenever he got he was told to give someone some medicine, he gave it to him. That's the end of it. That's not if it came from Mr. Piccone or wherever, but this authority had come for some higher person other than him. So once he got that, he did what he was told. I think it's a little more nuanced than that, your honor. You answered a little bit more for me beyond that. And what more was he required? What duty beyond that? You assert he was required to have. Okay. In Virginia, there is a written practice agreement that a nurse practitioner, not a nurse, the nurse practitioner must have with the supervising physician. And there is testimony from the supervising physician that they were in daily contact that they. If you're not addressing a standard, the question that was asked you is what is the standard? You started your argument out with saying that government used the wrong standard. And you also said something I want to follow up on briefly that this man didn't know that he was not. He didn't know of all these things, even though the he's administering thousands of pills to a person that I think almost common sense would tell you that it's inappropriate. He knew that he had the safety net of the supervising physician. So he didn't think he had any independent duty as a medical practitioner. He thought he could hide under orders. It's sort of like the head of the government telling you to assassinate somebody you said I was just following orders. There, if you had evidence that the person knew that assassination was wrong, which probably happens. The nurse practitioner has a duty and a duty imposed by law in administering prescriptions and prescribing drugs to do something. Follow a safe medical practice is be sure that the patient needs it. Don't over prescribed. Ignore attempts to defraud him. Somebody comes in lies and he believes in person's lying. Wouldn't he say I can't administer this? Sure. Of course. Okay. Now what is the standard and why is it different from any medical practitioner within the scope of the medicine being administered? This is why the good faith part of this is so important because what I'm trying to say is that because he was a nurse practitioner and had this agreement. He believed that as long as his supervising position was saying this is within the balance of medical practice. This was the basis for his education when he came. You're basically saying I was following orders. When you're following orders and there's no evidence that you're following orders was outside the scope of practice. Well, that's the issue. If it's outside the scope of normal medical practice. And government attempted to prove in this case. And the jury found that they did prove that these prescriptions were out of bounds. There was no evidence though on those three charged prescriptions that those were outside the bounds of medical practice of anyone's medical practice doctor Mr. Browns. There was really no evidence at all on those three charged prescriptions. Was he involved in the prescriptions to honesty? There was evidence that he was. His name is on the prescription. But there was also evidence that Mr. Baconey went in and forged Mr. Brown's name on prescriptions. There was also evidence. Are there any prescriptions that Mr. Brown signed to honesty? Yes, the right, I mean, the record includes all of his prescriptions. Well, all of a sudden it's not just for the ones where something else in the jury can rely on anything to convict. And if there's some where he signed the prescriptions and they were out of bounds. And I suggest those prescriptions to honesty were pretty clearly out of bounds. Don't you agree? I disagree, Your Honor, that in all circumstances the prescriptions to him were outside of the bounds of medical practice. There was evidence. That's not the standard of all of them. We're talking about where there's some from which the jury could have convicted. No, we're talking about this one particular charged prescription. And there was evidence that Mr. honesty had real pain problems that all three of these patients who received those charged prescriptions had pain problems. There was no evidence on the specific charge prescription that that one was outside the bounds are not for the fifth or for which prescription. The April 5th, one or more. Yes, for each of those three charged prescriptions. There Mr. honesty did not testify about that prescription. And Mr. Dow did not testify about that specific prescription he received. And Mr. Rogers did not testify at the trial, obviously, didn't mention it. The expert did talk about that prescription, the one to Rogers. She did not specifically mention either in her expert report or at trial the prescriptions to Dow or to honesty. As for the prescription to Rogers, she all she said in the report was there is a prescription. There was an honesty, the one that get thousands of pills and then returning some to the clinic. And they were found in the drawer and they were found in Mr. Baconian. People with different types of medicines were being prescribed each time. Yes, and if you look at Mr. Honestiest Testimony, what he was saying is he had an agreement with Mr. Baconian, not Mr. Brown. It doesn't matter if Mr. Brown was dispensing him and it was beyond the medical pale. Well, what the evidence actually showed was that Mr. Brown decreased Mr. Honestiest Prescription. Then Mr. Baconian came in, forged Mr. Brown's name on the prescription and increased the dosage. What did Mr. Brown say? Mr. Brown said that he never prescribed outside bounds of medical practice for any of the individuals. We're particularly with Mr. Honestiest referencing June 7, 2010. Is that correct? Yes, I believe that's correct. And it doesn't keep... I'm sorry, I'm sorry, but just let me correct that. I don't believe that Mr. Honestiest ever testified specifically about the date of the charge for prescription. All right, but count 7 references, June 7, 2010. There is no reference in Mr. Honestiest Testimony to that date. Does that matter? Is there any evidence in the record about that, the medicine administered on that date? There are prescriptions issued on that date with the name Mr. Brown. But there was no testimony tying a specific prescription outside the bounds of practice to those prescriptions. And he did suffer from real pain conditions. The expert witness did offer that testimony though. She did not testify about that specific prescription for oxycontin on June 7, 2010. She just made general observations that the practice was outside the bounds of the physicians. Mr. Honestiest, turning Mr. Brown that he'd suffered three overdoses and Mr. Brown continuing to prescribe the medicine. Along with testimony that prescribing to known addicts is not necessarily outside the bounds of medical practice. From Dr. Courier, I believe, who was the supervising physician at the time of the prescription that was charged was written. Okay, I think you have a little bit of rebuttal on the option. Okay, I also have a sentencing argument if you have any questions on that. I think you're time's up now, but try to catch it on rebuttal. Okay, Mr. Honestiest, I want to go. Good morning, Jonathan. Jonathan Winergay, appearing on behalf of Mr. Paul McComb. Let me start out, Judd Neumier, by your first answer in the question that you both respect to the pill bottles that were found of the Shantille Specialist Clinic, respectively, for Eric Honestiest. Well, I'm not, that's not a big deal. The idea was that honesty was in an arrangement where, apparently, he was returning the pills, oxocon pills that he obtained through prescriptions is not right. That's what he claimed, however. There's evidence of it, but that isn't the, you know, this record is pretty big. There's a lot of evidence in this case. And to make an argument that there's a lack of sufficient evidence from which the jury could have found a conspiracy in the various violations is a big task, because you have to take on the hardest evidence against you. The jury can consider any of that evidence. It can disregard some, and we don't know what it considered. So the effort on your part and on Ms. Burman's part has to be to address all the evidence, the hardest evidence against you. If you're going to make a sufficiency, the evidence, are you? Yes, Judge. Our refer to Court to, being 474 and 475 of the journal appendix, that addresses the fact that, especially in the era of weeded, who actually seized the photograph that is the exhibit 46, 36-H, that is the photograph that had the pill that you referred to with Eric Ernestian, that's a specific bottle, especially the end of 475 questions from Mr. Williams could not tell if the bottles contained any pills. There was subsequently by Mr. Bacone that they are required to return their old prescriptions if they're being given new prescriptions. So when they are returned, there's a destruction law that went through of the trial because I was trial counsel. That doesn't answer my question or that I was directing. I didn't say, didn't they find the pills, but my question was, wasn't Mr. Honesty, wasn't there testimony that he was returning pills to the clinic? He was required to return pills to the clinic before he's given new pills. As his testimony showed, if you're giving 70 pills, and then at some point or to much, or not a practitioner brown decides to change the level of the medications that you're taking, you are required as part of making sure that there's no division or that the patient is not giving medication or salining. You are required to bring it back, then it's why you required to bring it back. So that there's no division required, the clinic, shantilly clinic required that it be returned so that it is properly accounted for, so that there's no division, which is what the government claims in this case that was not being done. And then there's a destruction law that was entered or used in this case that showed that the medications are returned, then destroyed before the doctor or not practitioner issues new medication. And you say there was evidence in this case to shield that that he returned them because he was supposed to for purposes of destruction because he was given another prescription? Yes, King Dow testified as to how the process works. That's my memory from the transcript. I've been in the trial. That may be a take on it, but I think the government is going to say that the evidence showed that there was a prescription of a large amount. And in order to give him an increased amount, there was an agreement to give him some pack so that the clinic could have some there. That's what he was given a large numbers of pills, wasn't he? It depends on how you define, how you define life's number, J. Niemhaya. Let me give you an example, at least in talking to the experts that we used in this case. When somebody gets a four milligram oxycotin, for example, for purposes of example, an individual then complains of continued pain. In order for you to increase the medication, you may be either given two four milligram pills whereby you're taken two, it may be like that you're taken two. So it looks like you're giving more medication. However, the milligram is actually what you control. And not that the drug appendices are normal in this case. And if you go through the task of looking at each individual patient and individual increase that is talked about in this case, it is not the number of pills that controls, but the milligram. If you look on the drug appendix, 592, 579, to 583, and 592, to 593. Even the doctors on the ex, and we wouldn't go up on the ex, but Dr. Hamel wrote, considered specifically, have watched to the effect that there's really no number that is set as something that one can say that this is the right number of medication, and this is not the right number of medication, specifically appears on a brief on page 19. Especially just to cut through this, are you arguing that there's no evidence to convict, insufficient evidence to convict Mr. Pacon? I will submit that there's insufficient evidence to convict Mr. Pacon. I'm arguing that Dr. Hamel wrote a report and testimony should not have been done. Can you just answer my question first? Yes. Are you making an argument that the government didn't have sufficient evidence to convict in this case? Yes, sir. Yes, sir. Because if you look at the entire record, one thing that comes across is that people that testified, but then not one of them said that Mr. Pacon signed a signature, not one. The only person that claims medication was given to him, Mr. Burnham just said, Mr. Pacon forged Mr. Brown signature. That's the claim that she makes, she represents Mr. Brown, but then you can go through this record, Judge. That was the testimony, the testimony of honesty. Honesty that Mr. Pacon forged, Judge, if you look at the transcripts. Is that true? Answer that question. Was there evidence in that, Mr. Honesty, that Mr. Brown, Mr. Pacon, forged Mr. Brown signature? I don't recall sitting through that trial and hearing such testimony, but I'll say that whatever the record indicates, but I don't recall Mr. Honesty saying that there was any fraudulent because specifically Mr. Pacon. I would say that Mr. Pacon directed Brown to sign the prescriptions. But then that's what was claimed. What happened when Mr. Brown testified, he said he was never directed by Mr. Pacon to sign anything. Dr. Maid said he was never directed to sign a given anybody prescription. Dr. Corrie also testified that she was never told or given any orders by Pacon. Because the government's essential argument is that Mr. Pacon distributed this narcotics by either talking to doctors into doing it or asking the doctors to do it on his behalf. But this is very central because it seems as though in the joint appendage when you look at page 334, there's some indication there from Honesty in terms of what it's supposed to been done. And he seems as one instance where I think I recall where you said that Brown hadn't reduced his medication. But Tony Paconic got it, took the prescription and forged Brown's name to increase the medication. That's what he testified to. Well, the not is true or not is testimony. The problem with Honesty's testimony is like a buffer mystery. It may be a problem, but my question is did he testify as such? On page 334, I'm indulging in the warning. I mean, you said you had to trial. You were never whether or not he testified. I just saw it on page 334 that he testified that he did sign Charles Brown's signature. He who is he? He, Mr. Pacon, Charles Brown's signature to forgery. But then the next question is... You may have a good point, but now we're kind of getting the baby wake up. You got some evidence here to support what's going on. Not the not the not the not the nots partition of Brown says that identifies that signature. He said he's not the nots partition of Brown said he was the one that signed that particular prescription. Look here, I've just been appointed out to a portion of the transcript. 331. This is a honesty testifying. Did you ever witness Paul Becon signing prescriptions? Yes, I have. Question, what name did you see him sign Charles Brown? Say an evidence. It's like that's... I will say that the evidence in terms of the testimony from a witness. But then the question then becomes when Mr. Brown took this stand, he testified in this case. He was shown the prescriptions. He had identified those prescriptions as prescriptions that he signed. So honesty saying that my client Mr. Becon signed it is one thing. But then Mr. Brown who testified on the old said he was the one that signed those prescriptions. Dr. Joel March also testified that he signed those prescriptions. Never saw my client Mr. Becon sign any prescriptions. Honesty was the same individual that my client had to call the police on. Honesty was the same individual that my client had to testify against. What probably you got is this is a jury trial. It was a jury trial. You're making an interesting argument. I don't think I've heard that before. You said you recognized this witness. It's testified that but your witness is un-oven. He testified he didn't sign it. And therefore your jury could possibly find it it did. No. No. No word stated in the law. You won't get anywhere with that. No, no. It's like I had judge Wayne. The argument that I'm making on the point that I'm trying to make is Mr. Honesty says one thing. But the documentary evidence on the record, which is the actual prescription in question, was identified by a non-practition and brown as a signature. Honesty said that as I said some places he didn't have a signature. They were for it. Who say brown? On one occasion, judge. I got to look. On occasions enough. I'm telling you you've got to face the hard evidence. Not the easy evidence. To gain testimony that went your way doesn't help you. It's the testimony the government put in that inculcated your client. You have to address. Specifically, I will address the... Well, actually you threw a red light now. I don't have to reserve. I guess I'll reserve it. I'll just say that the report from Hamill's roots should not have come in because it doesn't have come in the American Medical Association stand. That's not one bit. But I will address the other many issues since I have a statement. All right, Mr. Banner. Good morning, Mayor. Please the court. My name is Michael Binary. I'm an Assistant United States Attorney for the Eastern District of Virginia. This case was about Paul McCone operating a drug distribution business with the help. The essential help of nurse practitioner Charles Brown. If I might, Your Honors, I'd like to jump to addressing the sufficient to the evidence with respect to the three substantive distribution counts against Charles Brown. The court asked several questions about what is the standard for a nurse practitioner versus the standard for an MD. And I would argue that it's exactly the same standard. And it's the same standard because in Virginia and other states where nurse practitioners are allowed to prescribe using an MD's license, they are standing in the exact shoes that the MD would stand in were at the MD of the medical practice prescribing. Does it, does it, maybe you can help me on this? Seems like it may have created another element of proof on the part of the government. You have to show that it was not for those purposes. I would think that is correct and it's consistent with our jury charge in this case. But the argument on the other side is that he's not bound by that. Then he becomes sort of like a layman. And then you don't have to prove that. That's not trying to understand where does that go. Maybe I'm misreading that, but I see it on one hand as a benefit. You didn't prove it. But if you don't have to because the argument is he's not a doctor, he's not a physician. So therefore he's a wriggle guy. So he's just like, what's the going on? You don't need to prove that. I think that's am I reading that wrong? No, Judge Williams. I think you're reading it correctly, however, because nurse practitioners in Virginia are allowed to issue prescriptions under an MD's license number. The argument is what kicks in the element. That's what kicks in the element. And certainly you could take defendant Brown's argument to say that we proved too much. Because we took on that extra element, but we did take on the extra element because it was abundantly clear in the jury found that these prescriptions were issued outside of the scope of medical practice. It's not related. But it's almost like that element really is something that's a higher level of proof from their perspective that you don't only have to prove that it's medical necessary, whatever. But it proved that wasn't someone who ordered them to do it or who was a medical doctor, I guess. That wasn't within the scope of the things they were created to do. That's correct. And an MD would have that same good faith defense. It was the elements that the Brown knew this was beyond the pale. These prescriptions that he on the counts. Ms. Burnham says there's no evidence on those counts. Yes, Judge Neemar. And it simply put the three substantive counts were issued instances where the medical records reflect that the prescriptions were either issued or directed. Or the patients were seen by Paul McCone. There was no medical visit whatsoever on the part of nurse practitioner Brown yet Brown signs the prescriptions. Dr. Handler Ruth testified to give the jury a framework to view what's legitimate, legitimate medical purpose. She testified that it was outside of the scope of legitimate medical purpose to issue these opiate pain medications without conducting any physical patient visit or seeing the patient at all. But even on top of that. Of course, when you're dealing with the air established that Brown signed. Yes, that the prescriptions themselves are actually in the record the originals. But how do I know it's not Mr. Beckone's forgery? Well, your honor. Even. Even if they were forged by Mr. Beckone and I would suggest that that wasn't what the record reflected. There was evidence that nurse practitioner Brown would sign stacks of prescriptions brought into him at the medical practice. But even if he did it would there would still be sufficient evidence that Mr. Brown was aiding and abetting because he was. He was assisting Paul McCone who needed someone. A teammate essentially someone who's had a license to issue these prescriptions whose name could be put on the prescriptions because if a prescription went to the pharmacy with the name Paul McCone. The prescription use that he didn't know. And I would argue that that's just simply against the weight of the evidence. If you go back and look at this, a single witness Eric Honesty as the court pointed out he testified directly. I think the question was something like who did you have the agreement with and his answer was it was with Charles Brown and Paul McCone and that is on page 339 of the joint appendix. Additionally, there was other evidence that the two were working hand in hand together to distribute these drugs. William Dahl who was the medical office director testified that once Dr. Match came on board. Dr. Match was the second supervising physician that was employed by Paul McCone and Chanterly specials. When patients complained to Paul McCone about Dr. Match cutting their medications, the patients would be rescheduled for a visit with nurse practitioner Brown. And the result was that they would be issued the same prescription that they were requesting not be cut. So there is significant evidence that Brown full and well knew that he was acting outside of the scope. There were other patients who were Charles Brown's patients who testified that they would come into the practice and as new patients through their entire time of the practice where their prescriptions were jumping up and up and up and up and not once did nurse practitioner Brown who was there treating person at Chanterly specials. So there was not once that he conduct a physical examination of them at the practice. And so I think that all of that goes to support the jury's finding that he was well aware of what was going on. He was in the conspiracy fully and had the agreement directly with these drug addicts to get them the pills that they needed with respect to good faith. I would like to address that. And again, I mentioned that Dr. Match was the second supervising physician. The first supervising physician was Dr. Carol Courier. Both Carol Courier and Dr. Match testified that they did not approve of these prescriptions being issued these incredibly large prescriptions to these people with obvious issues, addiction issues, the version issues. And I believe their testimony was that had they known that this was going on, they would not have approved it. So there is no good faith defense here for Charles Brown because he did not have approval from his supervising physician. Let move you just a bit out of order and you can come back. Yes. I want to deal with one of the sentencing. Yes, your honor. Does the calculation of the drug quantity in that PSR include all of the prescriptions written by Mr. Brown for these patients? It includes all of the prescriptions written for select patients, not all of the prescriptions that Charles Brown issued for all patients of Chantilly. And the reason in the PSR adopted by the district judge was that there was a record to demonstrate by proponents of the evidence that the standard of care was breached for those patients. Those are patients who came in and certainly in the past they could have had medical problems, but the record reflected that while they were at Chantilly Specialists, there was no legitimate basis upon which they could be issued any pills. So these prescriptions are the ones that were written at the Hess, most of the Baconey and the ones that were not written for the Hess and the Baconey. Well, I'm not sure that the inclusion by the probation office rose and fell on whether they were specifically issued at the Hess of Baconey, whether these were patients that Charles Brown was seeing during the life of the conspiracy and he issued the prescriptions. I think that their inclusion in the sentencing amount rose and fell on whether there was any legitimate medical basis to issue the prescriptions. There was a preponderance of the evidence found by the probation office adopted by the district court and certainly backed up by the record that none of the pills issued to the specific patients selected for inclusion had any medical purpose. These were pills issued to addicts and drug dealers in the hundreds and thousands of unit amount. And so I would argue that they were correctly included. Notably, the sentencing guideline calculation that defendant Brown argued for at sentencing was a level 32, which would have resulted in a low end calculation of 121 months, of course, as you know, your honors he was sentenced to 60 months at the end of the day. And so with respect to with respect to sentencing, if I could just close that loop. The position of the government is if there was and we can see that the record from the district court was is exceedingly brief for each of the two defendants. However, we would argue that the court this court can be confident that he in fact considered all of the sentencing arguments by both Bacone and Brown, even if it was not as explicitly stated in the record as we would have liked to see, because in the context of a well briefed and well argued sentencing hearing, the sentence that he imposed for both Bacone and Brown were significantly below what the government requested significantly below what the district court found the properly guidelines range was and actually closer, certainly in Brown's case, but also in Bacone's case, closer to what the defendants themselves requested, Brown requested a sentence of minimal incarceration. And Bacone requested a light sentence and in the context of this drug distribution business resulted in numerous numerous overdose deaths, very high guidelines range based on very high pill amounts that for Paul Bacone, the sentence imposed 15 years is certainly significant, but much lighter than it certainly could have been and for Charles Braser's guideline range go up to life. It was 360 to life again and even if you, there is a point in the sentencing argument where Mr. Bacone's counsel talks about a level 32 again because they're requesting essentially a fraction of a third of the number of pills that the probation department included, which would bring it down to level 32 again, you're still dealing with a guideline range of at a low end of the 21 month, certainly with the leader enhancement that the district court has. The district court found was appropriate for Paul Bacone. I would argue that this court can have confidence that the district judge did actually consider the sentencing arguments and coming up with the appropriate sentence. Council, if you read the paragraph in the presenis report as I recall that discusses the four point leadership enhancement and you count the number of individuals named in that paragraph, you don't come to five. Have you thought about that? Who are the five feet? Well, you're on it. If you're talking about people that are actually co-conspirators, I would argue that you could easily get to five. You certainly have Charles Brown, you have, I would submit Eric Honesty. Yes, sorry, that paragraph explicitly excludes Mr. Honesty, probation officer discounts Mr. Dow as well. And even though those people are discounted, I would argue that there was clear evidence by opponents that they were members of the conspiracy. They were acting with these two men to get pills that they were then selling to others. Provision officer came out on the opposite and there's no discussion about the judge as you recall. So there's no finding in the record as to what you just said is there. I would have to specifically go back and look, I know that the district judge was economical with his on the record discussion at the sentencing argument. And however, I do believe that the record has proponents of the evidence that there were new far more than five other individuals involved. Even just counting, not counting the patients, even just in counting other people that chantilly specialists over whom Paul Bacone had exercise influence. And I would argue that both of the supervising physicians that Mr. Bacone brought in, you have. What you're pointing out is that the enhancement has the words or otherwise extensive. Correct. And now you're making the argument that you don't need to be fixated on five. That is true. As a fallback, I would argue that there certainly is evidence in the record that there were far more than five, but they don't all need to be viewed as cook and spears to qualify as the five, but even outside of that when you're dealing with an enterprise involving this many patients traveling as far distances as they were even up to 13 hours, it certainly would have been justified. Would Dr. Fassan be one? He would be Dr. Frazier would be another one. Melissa LaVoy who is the Medicare Biller. I think there's clear evidence that she was acting at the direction of Bacone based on his own testimony that he brought her in as the Medicare Biller. Certainly we know that bills were submitted to Medicare that were false. She would have gotten that false information because Paul Bacone was conducting the patient visits from Paul Bacone. She acted at his bitty even if it wasn't completely knowingly as a co-conspirator. So I would argue under either standard the record supports the imposition of the enhancement. What is the evidence to support count 9 against Bacone? It's against both Bacone and Brown, but I'm just interested in what the evidence against Bacone. That's the April 5th. Certainly, Your Honor. Count, if I may just flip to it on my notes, please. Count 9 dealt with Michael Rogers. Interesting. With the council today points out that Michael Rogers didn't testify during a trial. Of course, he was an overdose victim. It was long dead by the time our trial occurred because he had been over prescribed by Bacone and Brown. The evidence was that that prescription was directed by Bacone and signed by Brown. The prescriptions in evidence, the medical notes of that April 5th, 2010 visit indicate that the prescription was directed by Bacone. Of course, if the jury finds that to be true, he's guilty of distribution of drugs because he has no medical license and can't prescribe at all. With respect to Brown. What was the evidence that he directed that one? It comes from a review, primarily a review of his medical file. And you can see in the medical file, as it's discussed at some length in trial, they had an electronic medical record system. And so you actually could see the user in the system who was inputting changes to the prescription, inputting the notes concerning the prescription. And the notes associated with that visit indicate that it was Paul Bacone. And if the jury found that to be the case, that is sufficient evidence to find him guilty of distribution of control substances for that count. Of course, Michael Rogers ends up coming back three days later on April 8th, getting a new prescription, which was far earlier than was scheduled. And his found dead on his mother's couch of a drug overdose that same day. He was traveling from Tennessee, which does share a border with Virginia, which certainly not with Chantilly, Virginia. You said there was more than one, how many people died from overdose? Well, there were counts in the indictment dealing with two overdose deaths. Jonathan Heiser and Michael Rogers. The jury ultimately found the defendants of the legality of distributing the drugs, actually not with respect to Jonathan Heiser. But they did not find them responsible for the death resulting, which would have been a sentencing enhancement presented to the jury. In Dr. Hamlet-Ruth's Ruth's report, there is a discussion of a number of additional patients who also died of drug overdoses, but those were not specifically charged. The substantive counts, they were incorporated into the conspiracy count. And so, unless the court has additional questions. All right, thank you. All right. Let's see who's next. I guess is Vernon here next. I'll address the sentencing arguments first, because we didn't get to that last time. The government is incorrect that there's no evidence there was a legitimate medical purpose for any of the prescriptions for those four individuals. For example, they also suffered from real pain conditions. You can see that in the briefs and in the record. So, in addition, the fact that he ended up getting a below guideline sentence is not, that's completely irrelevant, because the question is not whether the sentence ended up being within the guidelines range or not. The question is, was the process infected by this error? And it's quite conceivable that the judge would have given him any lower sentence, had he started from a correctly calculated lower guidelines range. And the failure to explain error is not harmless either, because very nature of that error is that it's not susceptible to a pellet review, because you don't know what the judge was thinking, what he considered or what he did not consider. On this sufficiency of the evidence, the government says that the evidence was that Mr. Brown didn't have approval, but that's not the way the practice agreement worked. He had approval as long as the physician wasn't telling him to stop prescribing or advising him that there was a problem. So, every time he wrote a prescription, he tacitly had approval for those. And to the extent that he could he write a prescription for a thousand units of of oxocotin say and and give those to give those to the patient who said, I heard. If he in good faith believed that that was acceptable medical practice, then. So he does have an independent duty to apply accepted medical practice when he's prescribing. Correct. With again, with respect to what he knows to be accepted practice, which is in part defined by what he's being supervised. And there's evidence that a lot of the patients he didn't actually physically examine at all to any science tax of prescriptions. There was also accepted medical practice and prescribing drugs. Actually, I believe that it was Dr. Matt, she testified that it is within the bounds of medical practice to not examine a patient every time you see them. And the government's expert also pined in her report that it perhaps it was her testimony, I'm sorry, but that it depends on the circumstance. You don't just order tests to work a test. You don't just perform routine. Brown was issuing these prescriptions without knowledge that he was feeding drug addiction. I think I think he whether he knew the patients were at X or not is not in same questions whether he believed that the prescription. My question was do you think Brown knew when he was prescribing these drugs that he was feeding drug addiction? No, I think the record does show that he was perhaps a negligent nurse practitioner. He could have followed up more, he could have though it's hard to see how he was in daily contact with the supervising physician. I mean, I guess you could say he could have sought outside help from outside the practice or something, but. I mean, a customer comes in one day gets a prescription, comes in a few days later gets another prescription and then that very same day overdoses. You know, you can bury your head and not sand as to what's going on. How long was he at that clinic two years? Two and a half years. And when he started there, he had no background and pain management on all this. I think it does, you know, there's things about it that are not great. He might be negligent, but the question is not it was he a bad nurse practitioner was he a negligent nurse practitioner. The question is whether he effectively ceased to be a medical professional at all. And it was just pushing drugs and the evidence just does not show that. Okay. I think we have one more rebuttal of Mr. I want to get. Thank you, Dr. Neumann. Respect to Mr. Becon. I would like to ship gears and go into the sentence and argument. The issues raised by just Flanagan are very relevant. Five or more people what we're doing by counting could have been this person could have been that person is basically was speculated as a judge. But Neumann asked the panel are men of the argument before us specifically what is the issue before us isn't it immutability judge the issue is the record indicates that we don't have five or more people for the role enhancement. We cannot see the aspect of what you should have been this system five people should have been identified on the record for the purpose of the enhancement. The four bad position doesn't even work because specifically the enhanced. What if we had a business run by Amofioso that had 30 employees that he was directing. You have to identify the 30 employees. The evidence has to show of the sentence in judge has to identify the employees who were being directed just because an individual is an employee doesn't mean that they've been the right. The centiprice this is a this is a racketeering enterprise that has 30 employees. My question is does in the judge in sentencing does he has to have to identify the 30 employees or name at least five of them to get the enhance. I will say that could the evidence show that there were 30 and he could just leave it at that and issue the enhance. Judge I will say that the record has to direct us to something that the judges rely on. We cannot speculate as to what number of people that were directed or managed within the. So you think that if the evidence was there were 30 people in a business and the judge doesn't say anything further about it. It's pretty well established. There was 30 people that the defendant was directing that we're speculating. I will say that the speculation because it has to be shown that the importance of the evidence and the importance of the evidence that's why you have a sentence in here in that those issues are supposed to be fleshed out. Like Mr. Benari eloquently stated the issues were well briefed if the judge wanted to make that fine you should have been made on the record. Here I talked to the press intensive investigation report as this and then we're stuck with it in addition to that there's no specificity as to which medications or which number that are not for legitimate medical purpose. That plays a number with the quantity of drugs in this case. Dr. Hamel roots and the government did not tell us how much of this medication was not for legitimate medical purpose. And lastly the other point that I have is the issue respect to the improper closing argument by the government as to the volunteering of Mr. McConaughey's appearance before the police officer to especially your worker to take his fingerprint. I'll submit that when you were told that you have something for you to show up and you on your own go over and then you're giving something to sign after you get to the location that you went there from the terrible being. And I'm glad that the grand jurisprudence been appending is one thing show them up on your own to have it done and have it executed is something that's not. You know there's a difference between a prosecutor vouching for the credibility or are not of a witness and there's a different proposition of the government arguing that the evidence showed somebody lied. And this argument government was pointing specifically to that testimony and making the argument that that was a lie. Now that can be counter argue but I'm not sure that on this record that was about you. The problem. The only problem not that is vouching but then when the prosecutor then says that Mr. McConaughey was on the stand he testified on the oath the prosecutor had the I asked him specifically about what I he went there voluntarily and he said yes. And then I'm supposed to rely on the evidence adduced from the proposal my close and argument the prosecutor had a crack at Mr. McConaughey they did not ask him that specific question. In closing argument they bring up this issue of him having to show up for someone to a grand jurisprudence. Now I'm relying on the fact because I was not printed this council that there was some grand jurisprudence that was actually issued to him, served on him for the proposal of appearance. Come to find out after the fight and after the court your argument is that he was relying on evidence or what in the record or I thought your argument was about you in argument that he was giving his opinion at the person lying. In addition to the fact that the government let us to believe that Mr. McConaughey showed up at solid station was one to a grand jurisprudence. The argument that I made before the jury was that he voluntarily showed up at the solid station and was subsequently said. So based on those words I asked this court not offend the conviction in this case. Let me you were court appointed. Yes, I'd like to recognize your service to the court. Thank you. Thank you, J.M. No. All right. We'll come down in Greek council and then proceed on to the next case