[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:01] Speaker 03:
Donald Green on behalf of Dr. William LVR.

[00:00:04] Speaker 03:
He is the plaintiff and the defendant below.

[00:00:07] Speaker 03:
I'd like to reserve two minutes of my time for rebuttal, if I may.

[00:00:10] Speaker 03:
Thank you so much.

[00:00:13] Speaker 03:
Your Honor, the facts in the case are not really a lot in dispute, but they can be analyzed from a different perspective.

[00:00:23] Speaker 03:
The issue of entrapment, your honor, 40 years ago, this court said that to establish entrapment as a matter of law, the defendant must point to undisputed facts, making it patently clear that an innocent person was induced to commit a crime.

[00:00:41] Speaker 03:
10 years later, 1995, in the United States versus McClellan case decided by this court, the government defeats that

[00:00:52] Speaker 03:
in defense of entrapment by two things.

[00:00:55] Speaker 03:
That the defendant was predisposed to commit the crime before the government agents contacted him, and two, the government did not induce him to commit the crime.

[00:01:04] Speaker 03:
Your Honor, in this case in March of 2020, the government apparently got some kind of information and decided to set up a series

[00:01:14] Speaker 03:
Stings not just one one would have been the crime, but no there was two more so in March of 2020 there was a sting operation the

[00:01:23] Speaker 03:
FBI set it up.

[00:01:25] Speaker 03:
They met with the two confidential sources, both females.

[00:01:29] Speaker 03:
They wired them for sound and or video.

[00:01:33] Speaker 02:
They provided them with... That's just the nature of controlled bodies.

[00:01:37] Speaker 02:
Yes.

[00:01:37] Speaker 02:
That's a very common law enforcement technique.

[00:01:41] Speaker 02:
Yes.

[00:01:41] Speaker 02:
So what's your best argument from the facts of this case that there was entrapment?

[00:01:46] Speaker 03:
The best argument is that at every step

[00:01:50] Speaker 03:
Recall that the confidential source one had been a patient of Dr. Alvear's for some years and had brought along this other confidential source set up by the FBI.

[00:02:03] Speaker 03:
The best argument, Your Honor, is that as to the following points, one, the FBI set it up and this was an ordinary string.

[00:02:10] Speaker 03:
This was in an office in a medical center.

[00:02:13] Speaker 03:
So it wasn't like in the back of a convenience store.

[00:02:16] Speaker 03:
Second, although that we do see these wired for sound

[00:02:20] Speaker 03:
These techniques used in many cases, this was done.

[00:02:23] Speaker 03:
They were provided with the money and eventually there was eight pills, ended up in the convictions for which the doctor was sentenced.

[00:02:32] Speaker 00:
But in this matter, Your Honor, I... Wasn't there evidence in the record that he was having communications with other people for similar kinds of transactions?

[00:02:44] Speaker 03:
That came in rebuttal, Your Honor, in text messages, which the government obtained text messages, and we're talking about that.

[00:02:52] Speaker 03:
And one of the women even said, I'll make love to you when I come to your office.

[00:02:56] Speaker 03:
But I think that was there a predisposition at that time to

[00:03:01] Speaker 03:
Was it a office visit fee?

[00:03:04] Speaker 03:
Was it for drugs?

[00:03:06] Speaker 03:
The banter in the text messages to which you refer, excuse me, the basis for the position, excuse me, that the statement that the court has made, that weren't there other instances?

[00:03:18] Speaker 03:
The answer is yes, but there were no convictions of those.

[00:03:23] Speaker 03:
We have unknown parties, but again, the text message.

[00:03:25] Speaker 00:
It doesn't have to be convictions, right?

[00:03:26] Speaker 00:
We're just getting a is.

[00:03:27] Speaker 00:
Is your client predisposed to engage in this kind of conduct, or is the government planting this whole idea in his mind?

[00:03:34] Speaker 00:
And the fact that he's got communications with people outside of these undercover operations suggests that this isn't an idea that the government planted in his mind.

[00:03:42] Speaker 00:
It's something that he thought about on his own.

[00:03:45] Speaker 03:
Yes, Your Honor, the facts can be seen in that light.

[00:03:51] Speaker 03:
But I believe that by looking at the totality of the circumstances, all the elements of the defenses presented, they set it up, the wiring, the money, daytime visits in an office, in an office building.

[00:04:06] Speaker 03:
This was not something that happened in the backyard.

[00:04:12] Speaker 03:
And the thing is that the

[00:04:16] Speaker 03:
The patients, these confidential source 1 and 2, showed up at the office.

[00:04:21] Speaker 03:
It wasn't like they showed up after hours.

[00:04:23] Speaker 03:
I think it would have made a big difference.

[00:04:25] Speaker 03:
And when they were talking to Dr. Alvear, this arrangement came through.

[00:04:30] Speaker 03:
And I don't think he would have done it but for this action by the government.

[00:04:34] Speaker 03:
We don't have that before.

[00:04:37] Speaker 03:
If there are no other questions, I will sit down and submit it on our briefs.

[00:04:41] Speaker 02:
Thank you, Counsel.

[00:04:42] Speaker 03:
Thank you so much, Your Honors.

[00:04:49] Speaker 01:
Good morning.

[00:04:50] Speaker 01:
May it please the court, Melanie Smith appearing for the United States.

[00:04:54] Speaker 01:
What I thought was interesting is he said, but for the FBI getting involved, he would not have committed these crimes.

[00:05:01] Speaker 01:
But I think Judge Forster hit the point.

[00:05:05] Speaker 01:
No, but for the FBI getting involved, he would have not been caught for committing these crimes.

[00:05:10] Speaker 01:
The only issue before this court is whether or not looking at all the evidence presented to the jury and all the inferences to be drawn from it in a light most favorable to the government was enough for any rational juror to determine he committed these crimes and he was not entrapped.

[00:05:27] Speaker 01:
Since most of the argument has been focused on entrapment, I will start there.

[00:05:32] Speaker 01:
The predisposition was shown at court.

[00:05:36] Speaker 01:
Yes, by the text messages that were recovered off of Dr. Alvear's phone when he was arrested showed that he had been communicating with other patients agreeing to exchange pills for cash, for sexual favors.

[00:05:49] Speaker 02:
Well, even before the sting was set up, one of the confidential sources had been getting unauthorized medications from him, right?

[00:05:56] Speaker 02:
Was that evidence presented to the jury as well?

[00:05:58] Speaker 01:
It was, Your Honor.

[00:05:59] Speaker 01:
So informant one had been a previous patient

[00:06:02] Speaker 01:
In 2016, she had been getting pills.

[00:06:04] Speaker 01:
In fact, Dr. Alvear sent her to rehab because he thought she had a problem from the pills that he was giving her since she kept coming back.

[00:06:13] Speaker 01:
And she reported that to the FBI once she became an informant for them.

[00:06:16] Speaker 01:
That's how this all started.

[00:06:17] Speaker 01:
They did not pick this doctor out of the phone book to target him.

[00:06:21] Speaker 01:
They had information that he was already doing this.

[00:06:25] Speaker 01:
And so, as you noted, they set up a very typical operation.

[00:06:29] Speaker 01:
They sent in the two informants, and within

[00:06:32] Speaker 01:
maybe 10 minutes, he's writing a prescription.

[00:06:34] Speaker 01:
So in addition to the information from the informant, in addition to the text messages, the jury also heard he was coaching the informant through a cover story.

[00:06:44] Speaker 01:
When they came in, they said she had had a breast augmentation and was still in pain.

[00:06:48] Speaker 01:
When he starts writing her the prescription, he says, you're going to tell them it's back pain.

[00:06:53] Speaker 01:
What I'm writing here means back pain.

[00:06:55] Speaker 01:
You say, oh, I had an accident.

[00:06:56] Speaker 01:
I fell, something like that.

[00:06:58] Speaker 01:
He then sent her to a specific pharmacy.

[00:07:01] Speaker 01:
where he said, they won't ask too many questions, they know me there.

[00:07:05] Speaker 01:
You don't know, a doctor doesn't know to coach a patient if he thinks what he's doing is right, if he hasn't done this before, and he doesn't have a pharmacy on standby that he knows isn't going to ask

[00:07:17] Speaker 01:
a lot of questions if this is something he hadn't been engaged in before.

[00:07:21] Speaker 01:
There was certainly predisposition presented to the jurors and they found that he was predisposed and is a very high bar to overcome a jury's verdict in this case.

[00:07:32] Speaker 01:
And the jury was given the Ninth Circuit instruction on entrapment.

[00:07:36] Speaker 01:
They were given that instruction and they did not find entrapment by the government.

[00:07:41] Speaker 01:
This idea that there was an inducement by the government, one, he's already predisposed.

[00:07:45] Speaker 01:
So we've overcome the entrapment.

[00:07:47] Speaker 01:
Two women as patients, of course, they're in his office.

[00:07:51] Speaker 01:
He is a doctor.

[00:07:52] Speaker 01:
That's what this law is addressing, is doctors who are acting in an unauthorized manner.

[00:07:59] Speaker 01:
And they're there for a few minutes before he's writing this prescription that he specifically says, you know, the FBI is locking doctors up for doing what I'm about to do, and then he does it.

[00:08:12] Speaker 01:
The entrapment defense, I just don't think it's there.

[00:08:15] Speaker 01:
I think Mr. Green even conceded to the text messages, which clearly shows predisposition that was put before the jury in this case.

[00:08:25] Speaker 01:
So we didn't get to the substance of the conviction, so I won't address that unless your honors have any questions about that.

[00:08:34] Speaker 02:
Any questions?

[00:08:35] Speaker 02:
I think we got it.

[00:08:36] Speaker 02:
Thank you very much.

[00:08:37] Speaker 02:
And counsel, you have some time left.

[00:08:38] Speaker 02:
Do you want to do rebuttal, or are you submitting?

[00:08:41] Speaker 03:
one minute if I may your honor.

[00:08:43] Speaker 02:
Certainly.

[00:08:43] Speaker 03:
Thank you.

[00:08:49] Speaker 03:
Judge Wynn, you made an excellent point by noting that confidential source number one was a previous patient of Dr. Alvear.

[00:08:58] Speaker 03:
The government even acknowledges that.

[00:09:01] Speaker 03:
So by bringing her in, I believe that that was part of the bait because Dr. Alvear was comfortable with her, had known her as a patient for at least four or five years.

[00:09:12] Speaker 03:
His mindset was different.

[00:09:13] Speaker 03:
We submitted on that if there are any questions.

[00:09:16] Speaker 02:
All right.

[00:09:17] Speaker 02:
Thank you very much to both sides for your argument this morning.

[00:09:20] Speaker 02:
The matter is submitted.

[00:09:22] Speaker 02:
I'll call up