[00:00:17] Speaker 01:
May it please the court, Davina Chen on behalf of Michael Kalantari.

[00:00:21] Speaker 01:
I hope to reserve three minutes for rebuttal and I will watch my clock.

[00:00:25] Speaker 01:
Yuko Curran was the instigator of the criminal conduct at issue in this case.

[00:00:32] Speaker 01:
After a former crime partner, who turned out to be actually cooperating with the government, brought him a purported opportunity to sell expensive HIV medications, Mr. Karan reached out to a pharmacist he knew, Irina Sadofsky.

[00:00:49] Speaker 01:
Ms.

[00:00:50] Speaker 01:
Sadofsky, in turn, introduced Mr. Karan to Mr. Kalantari, who she knew because he and his wife ran a medical concierge service providing mobile medical services to group living facilities.

[00:01:05] Speaker 01:
Both Mr. Sadowski and Ms.

[00:01:08] Speaker 01:
Sadowski and Mr. Kalantari defended on the ground that they understood Mr. Karan to actually be seeking services for the many residents of Seoul Transitional Housing.

[00:01:22] Speaker 01:
Mr. Kalantari and Ms.

[00:01:24] Speaker 01:
Sadowski were tried separately, and Mr. Karan was the key witness in both trials.

[00:01:31] Speaker 01:
Mr. dosky was acquitted of 3 of the 5 counts of which Mr. Kalantari was involved, and this court has vacated her remaining convictions on unrelated jury.

[00:01:44] Speaker 00:
I hate to interrupt the so so like we're here, but I want to get right to a point.

[00:01:50] Speaker 00:
How can you view Karen's testimony at Mr. dosky's trial as being true?

[00:01:58] Speaker 00:
And his testimony at your client's trial is false for purposes of the NAEPU evaluation.

[00:02:05] Speaker 01:
Well, getting right to the point, the first two categories of the false statement are clearly true at Ms.

[00:02:14] Speaker 01:
Sadofsky's trial and false at Mr. Kalantari's trial.

[00:02:17] Speaker 00:
And what what portion of that testimony to what do you refer when you just say that?

[00:02:24] Speaker 01:
Well, so the first was that the question at Mr. Kalandari's trial was, and at that time, 2016, were you telling people that you had 500 patients in your facilities?

[00:02:40] Speaker 01:
There was a recording played at

[00:02:44] Speaker 01:
Ms.

[00:02:45] Speaker 01:
Sadofsky's trial in which he was telling people that he had 500 people in his facilities.

[00:02:51] Speaker 01:
One of the recordings was the recording with Ms.

[00:02:55] Speaker 01:
Sadofsky and her manager.

[00:02:58] Speaker 01:
He also discussed at Ms.

[00:02:59] Speaker 01:
Sadofsky's trial another recording that was not played.

[00:03:04] Speaker 01:
And that was a recording with the undercover agent, Gary, where he explained to Gary

[00:03:10] Speaker 01:
that he had 500 patients, or I think it's 400 and some patients and 500 on a waiting list.

[00:03:18] Speaker 01:
So there is no way to conceive that that statement at Ms.

[00:03:22] Speaker 01:
Sadowski's trial was false because it was corroborated by the recordings.

[00:03:28] Speaker 03:
Wasn't Mr. Karen cross-examined about that at Mr. Kalantari's trial?

[00:03:34] Speaker 01:
He was cross-examined about that.

[00:03:35] Speaker 03:
And so why doesn't that, I mean I think for the whole laundry list of things that you point to,

[00:03:40] Speaker 03:
We certainly have discrepancies, and I think you're probably right that some of them you can demonstrate which is true and which is not.

[00:03:47] Speaker 03:
I don't think you can do that for all of them.

[00:03:50] Speaker 03:
But the jury had before it the credibility test for whether that was true or not in the comparison of the different statements that were being made.

[00:03:59] Speaker 03:
And so why doesn't that solve this problem?

[00:04:01] Speaker 01:
It doesn't solve this problem because it's the government's obligation to correct their witnesses' false testimony.

[00:04:07] Speaker 01:
This court and the Supreme Court have been absolutely clear that the Napieu issue is not that the false testimony was given.

[00:04:15] Speaker 01:
It's that the government failed to correct it because a mid-trial correction from the government is fundamentally different from cross-examination.

[00:04:24] Speaker 01:
In this particular case, the cross-examination didn't really land.

[00:04:29] Speaker 01:
It partially didn't land because it was generally preceded by a series of objections.

[00:04:36] Speaker 01:
Mr. Johnson asked Mr. Karen, isn't it true that you said this?

[00:04:42] Speaker 01:
And the answer was no.

[00:04:44] Speaker 01:
And then Mr. Johnson attempted to impeach.

[00:04:47] Speaker 01:
And the government said that it would be hearsay.

[00:04:49] Speaker 01:
It would be hearsay for Mr. Karen to say what he had told others.

[00:04:55] Speaker 01:
So it was interfered by a series of objections.

[00:04:59] Speaker 01:
But more importantly, the loop was never closed.

[00:05:02] Speaker 01:
As this court held in Dickey versus Davis and Clements versus Page,

[00:05:07] Speaker 01:
the Clements versus Maddox, the important fact is that the witness is lying on the stand.

[00:05:15] Speaker 01:
The important facts may not, in this case, the important facts also went to the defense.

[00:05:20] Speaker 01:
But the more important fact is not just that the witness is unreliable and that he gives inconsistent statements at one trial and another, but that this witness is lying under oath on the stand in this case.

[00:05:36] Speaker 01:
And that is what Glossop held very clearly.

[00:05:38] Speaker 03:
Well, so then let's push back on how can you tell which version is true and which version is not true?

[00:05:45] Speaker 01:
With respect to the first category, there's simply no debate as to which is true and which is not true, because there was a recording of Mr. Count.

[00:05:55] Speaker 03:
He could have been lying in the recording.

[00:05:57] Speaker 04:
I don't understand why we're giving more weight to the recording.

[00:05:59] Speaker 01:
No, no, no.

[00:06:01] Speaker 01:
The question is this.

[00:06:03] Speaker 01:
The question that Mr. Johnson asked was, and weren't you telling people that you had 500 patients?

[00:06:11] Speaker 01:
The recording shows he had said that.

[00:06:13] Speaker 01:
Right.

[00:06:13] Speaker 01:
So he was telling people.

[00:06:15] Speaker 01:
That was the question.

[00:06:16] Speaker 01:
The question was, weren't you telling?

[00:06:18] Speaker 01:
Because he was telling my client that.

[00:06:21] Speaker 01:
So let's bring this back to what is the point of the defense.

[00:06:25] Speaker 01:
My client believed that he had 500 patients.

[00:06:28] Speaker 01:
That's why he wanted to be in this deal.

[00:06:31] Speaker 01:
While I was listening to the other arguments, I looked at

[00:06:36] Speaker 01:
to ER 334, which is Karen testifying at Mr. Kalantari's trial that as late as March of 2017, so after all of the prescriptions were filled, et cetera,

[00:06:52] Speaker 01:
He's still sending text messages to Mr. Karen saying, when are we going to get started?

[00:06:57] Speaker 01:
I have an overseas trip.

[00:06:59] Speaker 01:
I still have several days of work that I need to complete.

[00:07:01] Speaker 01:
If my client thought that his job was just to write prescriptions that were not going to be filled, his job would have been completed in January, because the prescriptions were all filled in January.

[00:07:12] Speaker 01:
But in March, my client's still asking, when are we going to get started?

[00:07:16] Speaker 01:
I have several days of work.

[00:07:18] Speaker 01:
So let's be clear as to what the discrepancy is about.

[00:07:22] Speaker 01:
My client thought that there were 500 patients.

[00:07:26] Speaker 01:
And whether or not Mr. Karen had been telling people that there were 500 patients is crucial to my client's state of mind.

[00:07:35] Speaker 01:
And that is his whole defense.

[00:07:37] Speaker 01:
Likewise with Mr. Karen's testimony at Mr. Kalantari's trial that he does not know what a medical concierge is.

[00:07:49] Speaker 01:
We know for a fact that's not true because five weeks earlier he had testified at a trial and discussed in detail what a medical concierge was.

[00:07:58] Speaker 01:
And again, there were recordings played of him talking about how he would bring a medical concierge to Seoul housing because that would be easier than bringing 500 patients to doctors.

[00:08:11] Speaker 01:
So when he says, I don't know this concept of medical concierge, that is false.

[00:08:18] Speaker 01:
So with respect to the first two categories, they are indisputably false at the second trial and true at the first trial.

[00:08:27] Speaker 01:
I will concede with respect to the third and fourth categories, not quite as clear.

[00:08:32] Speaker 01:
The third category is he testified affirmatively, voluntarily.

[00:08:37] Speaker 01:
Mr. Kalantari always wanted to see the files because he wanted to make sure the patients were real.

[00:08:46] Speaker 01:
Now, you could see why Mr. Contrary might be a little bit suspicious.

[00:08:50] Speaker 01:
He understands, you know, you can look on the internet that Mr. Karen runs this gigantic organization called

[00:08:56] Speaker 01:
soul housing.

[00:08:58] Speaker 01:
But Mr. Curran is kind of weird.

[00:09:00] Speaker 01:
He wants to meet at Starbucks and bakeries.

[00:09:04] Speaker 01:
So you can understand why my client, before he got his wife and his wife's doctor involved in a medical concierge business with soul housing, would want to know if the patients were real.

[00:09:17] Speaker 01:
At the second trial when he was asked, and isn't it true that Mr. Kalantari asked to see the patient's valve because he wanted to see that they were real, Mr. Karan said no.

[00:09:28] Speaker 01:
So again, it's a direct conflict from the first one.

[00:09:31] Speaker 01:
Do we know which one is true?

[00:09:33] Speaker 01:
Not necessarily, but given the state of affairs, it's more likely that the testimony in Mrs. Sadowski's trial was true.

[00:09:42] Speaker 03:
Can we switch gears?

[00:09:43] Speaker 03:
I mean, we're going to run out of time, and you've got a number of issues here.

[00:09:45] Speaker 03:
I would like to switch gears to the jury instruction question.

[00:09:48] Speaker 03:
OK.

[00:09:48] Speaker 03:
Did you object to the jury instruction?

[00:09:50] Speaker 01:
I wasn't trial counsel.

[00:09:52] Speaker 01:
The trial counsel did object to the jury instruction, not quite on the same grounds that I raise on appeal, but he did object to the fact that.

[00:10:00] Speaker 01:
So originally, the judge had written one set of jury instructions.

[00:10:05] Speaker 03:
So I was trying to go back into the district court record and find the actual jury instruction.

[00:10:10] Speaker 03:
I mean, we have the transcript.

[00:10:11] Speaker 03:
of what the judge said.

[00:10:13] Speaker 03:
But I didn't find it in the docket sheet.

[00:10:15] Speaker 03:
Where is it missing?

[00:10:16] Speaker 01:
In this particular case, the court did not file the given jury instruction.

[00:10:21] Speaker 01:
So what we have to look at is volume one, the oral instruction on the page.

[00:10:26] Speaker 03:
All right.

[00:10:27] Speaker 03:
And so then your argument is that an objection was made, so we don't review this for plain error.

[00:10:32] Speaker 03:
And why?

[00:10:35] Speaker 03:
Or do you think we do review this?

[00:10:36] Speaker 03:
Your argument about knowledge.

[00:10:37] Speaker 01:
I believe that an objection was made because originally the court had one objection, one version, and the government objected and said, no, I'd like the version to be, I'd like you to add these things.

[00:10:52] Speaker 01:
And when the court added those things, defense counsel objected and said, you're a character.

[00:10:58] Speaker 03:
Give me the record site.

[00:11:19] Speaker 01:
I have one ER 32 to 40 that Mr. Kelantar objected to the wording of the instruction, which the district revised at the government's request.

[00:11:36] Speaker 00:
This is a slightly variant question.

[00:11:39] Speaker 00:
Why was it error for the district court to give a 404B limiting instruction that aligns with the pattern instructions?

[00:11:46] Speaker 00:
Isn't that an accurate statement of the law?

[00:11:50] Speaker 01:
No, it wasn't an accurate statement of the law for a number of reasons.

[00:11:54] Speaker 01:
First, it didn't fully align with the pattern instruction.

[00:11:57] Speaker 01:
The pattern instruction specifically requires that the jury be instructed that they have to first find that the other acts actually happened, and that particular line was omitted from this instruction.

[00:12:08] Speaker 01:
Second, this is a 404B instruction so clearly it needs to be tailored to the actual evidence that is being limited, both what is the evidence and what is the purpose.

[00:12:20] Speaker 01:
We can't give a standard 404B instruction listing all of the permissible inferences in every case because as this court has made very clear, you have to identify what is the inference that can properly be drawn

[00:12:35] Speaker 01:
in a, without a propensity chain of logic.

[00:12:39] Speaker 01:
So it was kind of the standard instruction, but the standard instruction itself requires choices to be made and those choices were not properly made in this case.

[00:12:48] Speaker 00:
So from your perspective, it wasn't a standard instruction.

[00:12:52] Speaker 00:
In the first place, it had to be, to fit into the pattern of this case and it didn't.

[00:12:57] Speaker 00:
So what I just ask you is not of any value from your perspective.

[00:13:02] Speaker 01:
From my perspective the pattern instruction requires the district court to make choices and in this case the choices that the district court made were improper.

[00:13:13] Speaker 01:
The first choice that the district court made that was improper was exactly what defense counsel objected to, characterizing these statements as acts.

[00:13:21] Speaker 01:
So they were, these statements, these recordings were admitted because the court had ruled pre-trial and in limine that they could go to, the fact that he made these statements could go to absence of mystique.

[00:13:36] Speaker 01:
And I agree that that would be a permissible

[00:13:38] Speaker 01:
in points to draw, if you're talking about certain crimes, then it's possible that you hadn't made a mistake.

[00:13:44] Speaker 01:
But the instruction that the court actually gave described not statements, but acts.

[00:13:52] Speaker 01:
You can consider these other acts for this reason.

[00:13:55] Speaker 01:
He's not on trial for these acts.

[00:13:58] Speaker 01:
The fact that he may have committed these acts is evidence of et cetera.

[00:14:02] Speaker 01:
But the statements were not acts.

[00:14:04] Speaker 01:
The statements were discussions of acts, and Mr. Kalantari's defense was that he never intended to do any of those things.

[00:14:12] Speaker 01:
In fact, he said things like, oh, I have 900 Norcos.

[00:14:17] Speaker 01:
If he intended to, he didn't have 900 Norcos, but if he intended to sell 900 Norcos, he would have.

[00:14:26] Speaker 01:
No one even gave him the opportunity to act on any of the things he claimed he could do.

[00:14:32] Speaker 01:
And that is because he could not do any of those things.

[00:14:35] Speaker 01:
He himself was playing a role.

[00:14:38] Speaker 01:
He was playing a role at this time because this is October or November of 2017.

[00:14:46] Speaker 01:
All of the conduct in this case occurred in January through March.

[00:14:50] Speaker 01:
And in July, Ms.

[00:14:51] Speaker 01:
Sadowsky's pharmacy got raided.

[00:14:55] Speaker 01:
And he came to understand that perhaps he had been dragged into something that he should not have been dragged into.

[00:15:03] Speaker 01:
And he went to these meetings with Mr. Karen attempting to understand what this conduct was.

[00:15:10] Speaker 01:
So he goes and he lies.

[00:15:11] Speaker 01:
He says, oh, I can do it again.

[00:15:13] Speaker 01:
Let's do it again.

[00:15:14] Speaker 01:
I have 900 Norcos I could sell right now.

[00:15:17] Speaker 01:
I have patients.

[00:15:19] Speaker 01:
I have pharma.

[00:15:20] Speaker 01:
He doesn't have any of these things.

[00:15:21] Speaker 01:
He's just saying this.

[00:15:23] Speaker 01:
But the instruction that the court gave left the jury with the impression that he could do those things, that he had done those things, and it would be permissible to draw the inference from his discussion of these things that he had all of these purpose, intent, that he acted with a pattern, et cetera.

[00:15:40] Speaker 01:
I see that I'm on my yellow light already.

[00:15:45] Speaker 03:
So before you run out of time, I want to circle back to, I was asking about the mens rea instruction.

[00:15:50] Speaker 03:
And you gave me a citation for where you think in the record it shows that an objection to that was preserved.

[00:15:55] Speaker 03:
Was that correct?

[00:15:56] Speaker 03:
Was that citation that you gave?

[00:15:58] Speaker 01:
I'm sorry, the mens rea?

[00:16:00] Speaker 03:
The knowledge instruction?

[00:16:02] Speaker 01:
Oh, I'm sorry.

[00:16:02] Speaker 01:
I gave a completely wrong instruction.

[00:16:04] Speaker 01:
No, it's on plain error.

[00:16:06] Speaker 03:
OK.

[00:16:09] Speaker 01:
Yes, that's on plain error review.

[00:16:11] Speaker 01:
No objection.

[00:16:13] Speaker 01:
I am going to reserve the remainder of my time for rebuttal.

[00:16:19] Speaker 01:
That's fine.

[00:16:32] Speaker 02:
Good morning, Your Honors.

[00:16:33] Speaker 02:
May it please the Court, Paul Crane, on behalf of the United States.

[00:16:36] Speaker 02:
I'm happy to start with any of the issues the Court would prefer.

[00:16:39] Speaker 02:
Can begin with the poo unless you would prefer otherwise would you start with the mens rea instruction?

[00:16:44] Speaker 03:
I mean as I read that instruction it is missing an element That's a big deal missing an element.

[00:16:50] Speaker 03:
I mean there's all kinds of instructional errors You can have but missing an element is a really big deal, so how is that not plain error?

[00:16:58] Speaker 02:
Well, I don't think it's plain error your honor because when you view it in the larger context of this being a conspiracy charge as opposed to a substantive count charge and

[00:17:08] Speaker 02:
I don't think I would disagree with you if it was just simply the substantive count charge that there would That'd be an erroneous description of the three three one three three three type of unlicensed wholesale offense but if you go back a page and the court is talking about in order to find the defendant guilty of conspiracy, which is the Count charged this is on three er six six four the court specifically says

[00:17:35] Speaker 02:
that one of the elements of conspiracy is that the defendant became a member of the conspiracy, quote, knowing of its object and intending to help accomplish it.

[00:17:46] Speaker 02:
And so I think when you view it in that larger context, especially on a plain error review, that there's no real risk that the jury was finding Kalantari guilty on count five without having some sort of knowledge element.

[00:18:03] Speaker 03:
Give me that site again, 3ER what?

[00:18:05] Speaker 02:
3ER664.

[00:18:08] Speaker 02:
And that is the beginning of the jury instructions for Count 5.

[00:18:14] Speaker 02:
And then the next two pages later at 3ER666 is the description of here are what the elements of the crime for unlicensed wholesale distribution is.

[00:18:25] Speaker 03:
Right.

[00:18:25] Speaker 03:
And it never ties that you need to know that there's an unlicensed.

[00:18:30] Speaker 03:
It says you need to know there's a wholesale distribution.

[00:18:32] Speaker 03:
It does not say that you need to know it's unlicensed.

[00:18:35] Speaker 02:
I don't disagree, Your Honor, that taken in isolation and in a vacuum, that description needs improvement.

[00:18:44] Speaker 02:
There wasn't an objection.

[00:18:45] Speaker 04:
Does that mean it's wrong?

[00:18:46] Speaker 02:
I think in the larger context, I don't really want to resist too hard.

[00:18:50] Speaker 02:
That is not the most accurate statement of the law.

[00:18:53] Speaker 04:
But I want to resist.

[00:18:53] Speaker 04:
You're resisting.

[00:18:54] Speaker 04:
I really want to know what is the government's position, because if we're missing something, I'd like to hear it.

[00:18:59] Speaker 04:
Now would be the time.

[00:19:00] Speaker 04:
I think the instructions err, do you?

[00:19:03] Speaker 02:
Well, I think that is a incomplete description of the elements of the crime of unlicensed wholesale distribution.

[00:19:09] Speaker 00:
All right, thank you.

[00:19:11] Speaker 00:
And what is the impact of that on this case?

[00:19:15] Speaker 02:
I don't think there's any plain error.

[00:19:17] Speaker 02:
I think there it is when you view the instruction in larger context, both that this was a conspiracy count, not the substantive count.

[00:19:26] Speaker 02:
and the discussion of knowledge both before and after that problematic aspect, there's not a clear or obvious error in describing to the jury what it needed to find to do a conviction on account five.

[00:19:41] Speaker 02:
Even if the court were to find a prong two problem, there is no prong three or prong four problem.

[00:19:50] Speaker 02:
There was no sort of

[00:19:54] Speaker 02:
Risk that the jury on the evidence that was submitted would have thought oh, Kalantari did not Thought there was a license for wholesale distribution everything in the evidence That wasn't the theory of defense and everything that was put into evidence was consistent with needing to sell on the black market and if you watch the videos Kalantari is clearly talking from a place of

[00:20:24] Speaker 02:
This is unlicensed wholesale distribution on the black market.

[00:20:27] Speaker 02:
So even if there were a prong to... From your perspective, this doesn't change the result.

[00:20:32] Speaker 02:
That's correct, Your Honor.

[00:20:32] Speaker 02:
We do not think there's a clear or obvious error.

[00:20:36] Speaker 02:
And even if you were to disagree with us on that, we do not think there is a prong three or prong four problem on plain error.

[00:20:42] Speaker 02:
So either way, we think you should affirm the count five conviction.

[00:20:46] Speaker 04:
Can you address the napoo arguments?

[00:20:49] Speaker 02:
Yes, Your Honor.

[00:20:49] Speaker 02:
So I would reiterate that that's also a claim on plain error.

[00:20:53] Speaker 02:
I don't think, if you look at the different categories of information, for a lot of the reasons that Your Honors were discussing with my friend on the other side, there isn't a clear or obvious falsehood.

[00:21:05] Speaker 02:
I think there are certainly inconsistencies, and I think there are some statements that Karen said that probably weren't true, but all- What about the concierge?

[00:21:13] Speaker 04:
Doesn't it have to be untrue, the concierge statement?

[00:21:15] Speaker 02:
I think so, Your Honor, but that was also immediately cleaned up.

[00:21:21] Speaker 02:
I mean, all these statements were made

[00:21:23] Speaker 02:
during the cross-examination by Kalantari's counsel and the statements that are in the first, second, and third categories of claims were almost all immediately successfully impeached by Kalantari's counsel, including the medical concierge claim.

[00:21:40] Speaker 02:
So the way I read the transcript is Karen was sort of almost being kind of

[00:21:47] Speaker 02:
And then was immediately called out on it and said, yep, that's right, I did in a prior proceeding say that.

[00:21:54] Speaker 02:
And even later on in the cross-examination is talking about medical concierge.

[00:21:59] Speaker 02:
So I agree that that sentence was probably a falsehood, but it was almost immediately taken care of by Kalantari's counsel.

[00:22:05] Speaker 02:
Similarly, there was discussion about the talking about in the community 500 either patients or guests.

[00:22:14] Speaker 02:
That's one of the aspects of the first category of claims.

[00:22:18] Speaker 02:
That also was successfully impeached by Kalantari's trial counsel on cross examination.

[00:22:25] Speaker 02:
The transcript site for that is 3ER474.

[00:22:28] Speaker 02:
So all of the categories of claims, I don't think after sort of the ability to account for the further cross examination that there was any clear or obvious falsehood.

[00:22:40] Speaker 02:
There are also, I don't think, is an establishment of the second or third prongs for a NMPU claim, which I'm happy to rest on our briefing unless the court has questions about that.

[00:22:50] Speaker 03:
I do not.

[00:22:51] Speaker 02:
I do not.

[00:22:53] Speaker 03:
Can you address the minor role adjustment?

[00:22:57] Speaker 02:
Yes, Your Honor.

[00:22:58] Speaker 02:
So as I understand, my friend on the other side, there's sort of two aspects of the minor role adjustment.

[00:23:03] Speaker 02:
There's the inadequate explanation

[00:23:06] Speaker 02:
Claim and then the actual merits of the minor role adjustment claim I think on the inadequate explanation that wasn't raised during Sentencing so I think that aspect is reviewed for plain error And I don't think it's either clear obvious that there was an adequate explanation and regardless why is that because there is no explanation, I mean I so I Think it's clear reading between the lines that the district court understands what he's supposed to be doing there and

[00:23:35] Speaker 03:
Which is sort of weighing the relative culpability of everybody involved in this scenario But his conclusion that he gives no statement for why he concludes that this person is is Not entitled to a minor role adjustment, and that might be a perfectly valid conclusion, but we don't know why he got there What what I agree your honor that the trial court during sentencing didn't specifically address it I think what we're relying on is the PSR

[00:24:02] Speaker 02:
Said he's an average participant is not entitled to the reduction and that might save it if he'd said I'm just adopting the PSR on this issue Did he I think the court did say he was adopting the PSR?

[00:24:13] Speaker 02:
except for the loss Parts of the loss amount calculation, can you give me that site?

[00:24:19] Speaker 02:
I'll double check that Yes, your honor Okay, your indulgence for a moment

[00:24:35] Speaker 02:
That's 1er-107-108.

[00:24:39] Speaker 02:
All right.

[00:24:42] Speaker 03:
So your argument is that that's enough of a record for us if the district court said, I adopt the PSR and the PSR addressed this.

[00:24:49] Speaker 02:
I think absent an objection from the defendant that yes, that is.

[00:24:52] Speaker 03:
Why does that make a difference?

[00:24:53] Speaker 02:
Well, I think if the defendant had made an objection of I want to hear more of your explanation beyond that,

[00:25:00] Speaker 02:
Depending on the context if the district court was basically like no, I'm not going to say anything.

[00:25:05] Speaker 02:
You know I don't want to say categorically simply saying adopt the PSR always insulates that I'm just saying Here given that that wasn't something that the defendant asked for additional explanation about I guess I'm not understanding that because if the reference to the Adopting the PSR and sort of general terms again.

[00:25:24] Speaker 03:
I don't remember that so I'll look at it in the record If that's enough to say it's not error

[00:25:29] Speaker 03:
Then fine we don't need an objection whatever it's just not error, but if it's not enough to say it's not error then Why does we need an objection?

[00:25:39] Speaker 03:
It's still just error And it's pretty plain in our case law what you need to do you need to make a record for why it is that you?

[00:25:45] Speaker 02:
Have rejected or or reached your conclusion on this sort of relative culpability analysis I all I was trying to reserve and I appreciate all that your honor is I could imagine a situation where the defendant is

[00:25:58] Speaker 03:
Make some sort of objection or make some sort of point that would merit a further discussion from the district court So on the point of whether or not just sort of like the off switch on off switch of whether or not the district court did enough Like gave enough explanation it really doesn't matter it seems to me what the nature of the defense Objection was or wasn't or whatever it was just did you comply with the legal obligation to explain your reason for why you reached this decision?

[00:26:28] Speaker 02:
Right, and I think, I should probably just yield, but all I'm trying to say is in the absence of an objection saying we rely, the district court saying I rely on the PSR, I think is an adequate explanation.

[00:26:46] Speaker 03:
So let's set aside whether this was error, plain error or not.

[00:26:49] Speaker 03:
The rest of the plain error test, you think, even if we say this is error, it doesn't affect the, I'm trying to remember the actual,

[00:26:57] Speaker 03:
The doesn't affect substantial rates and it doesn't undermine the credibility integrity of the proceedings.

[00:27:03] Speaker 02:
I think the the.

[00:27:06] Speaker 02:
On the substance, the district court was correct to not afford Mr. Colontari the 4 point reduction for or 2 point reduction for minor or minimal role.

[00:27:18] Speaker 00:
So I think you have case law that says that if the district court says my reasoning in this particular matter is.

[00:27:25] Speaker 00:
set forth in the PSR, as long as the defendant doesn't object, isn't that adequate under our case law?

[00:27:34] Speaker 02:
Yes, Your Honor, I think that is correct.

[00:27:36] Speaker 02:
And I think in that sort of plain error, and this is where some of the prongs almost kind of collapse on top of each other in an inadequate explanation context.

[00:27:49] Speaker 02:
And I think when you pair that with that there is substantively no error in declining to give the reduction, that just reinforces the lack of inadequate explanation claim.

[00:28:06] Speaker 02:
Your Honor, did you want me to address the substance of the minor participant?

[00:28:11] Speaker 02:
Or was it mostly just the inadequate explanation?

[00:28:14] Speaker 03:
Well, I mean, I guess briefly, because that's part of your argument for why even if we found error doesn't matter.

[00:28:20] Speaker 02:
Yes, your honor.

[00:28:21] Speaker 02:
So I think the PSR's description of this was an average participant, and this primarily three-person conspiracy is accurate.

[00:28:29] Speaker 02:
I think one of the best ways to know that is how the co-conspirators were planning to divide the black market proceeds themselves, which was one-third, one-third, one-third.

[00:28:38] Speaker 02:
To the extent the burden is on Colin Tari to establish that he's entitled to reduction, that he was sometimes substantially less culpable, the evidence all sort of points in the opposite direction of that.

[00:28:51] Speaker 04:
Judge Smith, do you have other questions?

[00:28:53] Speaker 00:
I do not.

[00:28:55] Speaker 04:
Give me a second.

[00:28:56] Speaker 04:
Sure, no problem.

[00:29:41] Speaker 04:
I don't.

[00:29:41] Speaker 04:
Thank you.

[00:29:44] Speaker 00:
I don't either.

[00:29:45] Speaker 04:
Thank you for your argument.

[00:29:59] Speaker 01:
I'm happy to address any questions that the court has.

[00:30:03] Speaker 01:
If not, I have four areas that I would like to speak to in four minutes.

[00:30:08] Speaker 00:
Let me fill it down to this.

[00:30:10] Speaker 00:
This case, of course, relies hugely on evidentiary issues.

[00:30:14] Speaker 00:
If you had to pick your very best shot, what is it?

[00:30:22] Speaker 01:
My very best shot is that my very best shot is that the government's entire case relied on Mr. Karen and Mr. Karen was a liar and the jury was not told that he was a liar.

[00:30:36] Speaker 00:
Isn't that, though, the province of the jury to determine that?

[00:30:39] Speaker 01:
So in LaPage, which I didn't get to mention in my opening remarks, this court was very clear that when the government knows that its witness is lying, it has the obligation to fix that.

[00:30:53] Speaker 01:
Impeachment is not enough because, as this court stated in LaPage,

[00:31:02] Speaker 01:
The jury understands defense counsel's duty of advocacy and frequently listens to defense counsel with skepticism.

[00:31:11] Speaker 01:
No lawyer may knowingly present lies to a jury and then sit idly by while opposing counsel struggles to contain the pollution of the trial.

[00:31:20] Speaker 01:
In LaPage there was extensive cross-examination and in the end the

[00:31:26] Speaker 01:
government actually conceded in its rebuttal argument that its witness had lied, and this court nevertheless held that there was a naphew error and reversed.

[00:31:37] Speaker 00:
And since- And the lie to which you make reference is what?

[00:31:42] Speaker 01:
The first two are very clear lies.

[00:31:45] Speaker 01:
The first lie is, and you were telling people that you had 500 patients.

[00:31:50] Speaker 00:
I understand that earlier- You spoke to that early on, so I got that one from your perspective.

[00:31:55] Speaker 00:
What else?

[00:31:56] Speaker 01:
The second one is, I don't know this concept of medical concierge.

[00:32:02] Speaker 01:
And this goes to the heart of Mr. Kalantari's defense, which is that he was presenting medical concierge.

[00:32:10] Speaker 01:
The third one is that Mr. Kalantari did not ask to see the patient files.

[00:32:15] Speaker 01:
because he cared that the patients were real.

[00:32:18] Speaker 01:
On the fourth, which I did not get to discuss before, but the government brought it up now, was this idea that they were going to split the proceeds one third, one third, one third.

[00:32:28] Speaker 01:
This is particularly significant because 18 pages earlier in the transcript,

[00:32:37] Speaker 01:
Mr. Karen testified that Mr. Kanatari's job was done when he wrote the prescriptions and got $200.

[00:32:46] Speaker 01:
The sale was not his department.

[00:32:49] Speaker 01:
18 pages later, the government

[00:32:54] Speaker 01:
returns and asks the question, and what was your understanding that he would get paid?

[00:33:00] Speaker 01:
And for the very first time in all of the proceedings, meaning the trial, the grand jury indictment, any of the previous interviews, Mr. Keran comes and says, we were going to split the proceeds one third, one third, one third.

[00:33:15] Speaker 01:
The reason why I say this is so significant is because this is the one NACUE error that the government voluntarily elicited itself.

[00:33:26] Speaker 01:
Mr. Karen had never said such a thing before.

[00:33:30] Speaker 01:
In fact, the indictment lists Mr. Kalantari as someone who provides the prescriptions, not as someone who sells the drugs.

[00:33:40] Speaker 01:
So unlike the first three NAEPU errors where the lie was elicited during cross-examination, and let's be clear why that happened, right?

[00:33:49] Speaker 01:
So there was a trial, Ms.

[00:33:50] Speaker 01:
Sadofsky's trial, and certain things that Mr. Karen said at Sadofsky's trial went directly to support Mr. Kalantari's defense.

[00:34:01] Speaker 01:
But when Mr. Kalantari attempted to elicit those same statements at his trial, Mr. Karen said no.

[00:34:08] Speaker 01:
And that's why

[00:34:09] Speaker 01:
The first three NAPU errors come during Mr. Karan's cross-examination.

[00:34:14] Speaker 01:
But the fourth NAPU error, the government elicited itself.

[00:34:19] Speaker 01:
And the government elicited, the question is nearly identical in Sadowski's trial and Kalantari's trial.

[00:34:29] Speaker 01:
What was your understanding of what Mr. Kalantari would get paid for his, and in one trial it says like prescriptions, and the other one says for the sale.

[00:34:39] Speaker 01:
And the answer is diametrically different.

[00:34:43] Speaker 01:
These convictions are not worthy of confidence.

[00:34:47] Speaker 01:
Mr. Kalantari's defense was solid.

[00:34:51] Speaker 01:
Ms.

[00:34:51] Speaker 01:
Sadowski presented the same defense five weeks earlier and was acquitted of three of the five counts.

[00:34:57] Speaker 01:
This court should reverse.

[00:35:00] Speaker 01:
I see I'm over my time.

[00:35:01] Speaker 01:
If the court has any questions on the other

[00:35:06] Speaker 01:
issues that the government counsel, I'm happy to answer it.

[00:35:09] Speaker 01:
And I will not argue it because the government did not touch it, but I really hope that the court will take a very close look at loss.

[00:35:16] Speaker 01:
To me, it is a very clear

[00:35:18] Speaker 01:
legal error to count the drugs twice.

[00:35:23] Speaker 04:
Counsel, you are over time, as you acknowledged.

[00:35:25] Speaker 04:
Judge Smith, any additional questions for us?

[00:35:27] Speaker 04:
I have no questions.

[00:35:28] Speaker 04:
I think we don't have any other questions.

[00:35:29] Speaker 04:
We appreciate your argument.

[00:35:31] Speaker 04:
Thank you very much.

[00:35:32] Speaker 04:
And with that, the public portion of this appeal is concluded.

[00:35:36] Speaker 04:
The panel has questions for the government regarding SIPA issues.

[00:35:41] Speaker 04:
That will take place ex parte.

[00:35:43] Speaker 04:
A recording of that proceeding will be maintained.

[00:35:46] Speaker 04:
We'll be off record.

[00:35:52] Speaker 04:
This court for this session stands adjourned