[00:00:00] Speaker 02:
23-3175 U.S.

[00:00:01] Speaker 02:
v. Otuonye.

[00:00:06] Speaker 02:
I'll ask counsel to pronounce that for me.

[00:00:11] Speaker 02:
So, Mr. Brindley, are you ready to proceed?

[00:00:14] Speaker 01:
I am, Your Honor.

[00:00:15] Speaker 01:
Go ahead.

[00:00:17] Speaker 01:
My name is Bo Brindley, and I represent the dependent appellant, Abubi Otuonye.

[00:00:24] Speaker 01:
In Henson 2 and Con 2, this court clearly enunciated the state of the law in the 10th Circuit following the Supreme Court's decision in Ruan v. United States.

[00:00:35] Speaker 01:
All money laundering convictions for Dr. Con and Dr. Henson were reversed despite being individually and legally accurate because

[00:00:48] Speaker 01:
In order to make a determination on the guilt for those counts, it was necessary to refer to the instruction regarding the 841 counts and the definition of an illegal prescription.

[00:01:01] Speaker 02:
Well, that's because the money laundering charge required that they actually have committed those offenses, right?

[00:01:07] Speaker 01:
Indeed.

[00:01:08] Speaker 01:
Here, the healthcare fraud counts in this case are directly analogous.

[00:01:13] Speaker 01:
And the reason is because the only basis for healthcare fraud that was in the indictment or that was argued to the jury or that was even possible was if there was the filling of an illegal prescription.

[00:01:26] Speaker 01:
And the only way to determine the legality was to go back to instruction number 16, which incorrectly defined what an illegal prescription was.

[00:01:37] Speaker 02:
There's a difference between an illegal prescription and violating the law regarding unlawful prescriptions by doing it knowingly or intentionally.

[00:01:53] Speaker 02:
And that wasn't an issue with the money laundering case because the way Rico or the money laundering statute refers to the underlying offense is you have to, there has to be a commission of the offense.

[00:02:06] Speaker 02:
So the, the Santa requirement was already there here.

[00:02:13] Speaker 02:
I'm not sure why that, why that's necessary.

[00:02:17] Speaker 02:
Why, why go ahead.

[00:02:19] Speaker 01:
There would be, I'm sorry, your honor.

[00:02:20] Speaker 01:
There would be no way for.

[00:02:23] Speaker 01:
the jury to make an assessment of whether the defendant in this case was guilty of the health care fraud counts without looking at instruction 16 to determine whether the prescriptions were legal or not, because the only basis for saying Mr. Otoine committed a crime with respect to Medicare and Medicaid fraud was if he filled prescriptions that he knew to be illegal.

[00:02:48] Speaker 01:
But the definition for what it means for them to be illegal

[00:02:52] Speaker 01:
harkens back to instruction 16, which is analogous to the situation that we're dealing with with respect to the money laundering counts in con to

[00:03:05] Speaker 01:
and Hanson too, and the conspiracy charges as well.

[00:03:08] Speaker 02:
Well, except that the defect, I want to get to the defect in construction 16 at some point, but the defect that you're alleging here is it didn't include the necessary c-enture requirement.

[00:03:23] Speaker 02:
Yes.

[00:03:24] Speaker 02:
But the fraud, the Medicare fraud account did have a c-enture requirement.

[00:03:32] Speaker 01:
It does.

[00:03:33] Speaker 02:
Why doesn't that take care of any problem with the Sienta with respect to the distribution count?

[00:03:39] Speaker 01:
Because it says knowingly committed the offense essentially, but the problem is knowingly did what?

[00:03:46] Speaker 01:
The question is, what did he knowingly do?

[00:03:48] Speaker 01:
And the only thing that he knowingly would have done is fill the prescription that was illegal.

[00:03:52] Speaker 01:
But to figure out whether it's illegal, the jury has to look back to instruction 16 and determine

[00:03:59] Speaker 01:
Well, were these illegal or not?

[00:04:00] Speaker 01:
And they had the wrong, they couldn't get a right answer on that based on instruction 16, the knowingly part of the healthcare fraud.

[00:04:10] Speaker 02:
If 16 says it's illegal to do something without C-Enter.

[00:04:19] Speaker 02:
And that's what illegal filling prescription is.

[00:04:22] Speaker 02:
And that's the basis of the fraud.

[00:04:25] Speaker 02:
But the instruction on fraud requires C-Enter.

[00:04:29] Speaker 01:
But knowledge of what, Your Honor?

[00:04:31] Speaker 01:
That's the problem.

[00:04:32] Speaker 01:
It's knowledge of what?

[00:04:33] Speaker 02:
Well, let's look at Instruction 16.

[00:04:39] Speaker 02:
For example, knowledge that it was filled outside the usual course of professional practice.

[00:04:45] Speaker 02:
Yes.

[00:04:46] Speaker 02:
You agree that that needed to be shown.

[00:04:48] Speaker 02:
That was an alternative under Instruction 16.

[00:04:52] Speaker 01:
That's what the Supreme Court says that has to be shown, that he knew it was outside the course Dr. Henson knew.

[00:04:57] Speaker 02:
He convicted of distribution.

[00:04:59] Speaker 02:
But you're saying what did he have to know to be guilty of Medicare fraud?

[00:05:04] Speaker 02:
And he needed to know that it was.

[00:05:06] Speaker 02:
Filled outside the usual course of professional practice.

[00:05:12] Speaker 01:
That's not what the Medicare fraud instruction said.

[00:05:16] Speaker 03:
Well, let me ask you about that about.

[00:05:19] Speaker 03:
And I don't mean to talk over your answer to judge hearts, but.

[00:05:24] Speaker 03:
When you talk about instruction 18, which I assume you're getting to the instruction on the elements, Judge Hartz has asked good questions about the first element.

[00:05:35] Speaker 03:
What about the fourth one?

[00:05:37] Speaker 03:
The defendant acted with specific intent to defraud.

[00:05:42] Speaker 03:
How can you possibly combine the jury's consideration of instructions 16 and 18 without the jury

[00:05:51] Speaker 03:
clearly understanding that the pharmacist had to have acted with intent to defraud in order to be guilty of counts three and four.

[00:06:04] Speaker 01:
The problem is that with respect to intent to defraud, defraud in what way is the question?

[00:06:12] Speaker 01:
And the only way that's been an issue in the case was by filling a prescription that was illegally written.

[00:06:21] Speaker 01:
And the jury would look at whether it was illegally written or not in order to make that determination.

[00:06:26] Speaker 01:
I don't think there's any way that we can say with confidence that the jury could just look at 18 and not go back to 16.

[00:06:34] Speaker 01:
And if they did go back to 16, that they somehow could combine them in the way that we're talking about combining them now.

[00:06:40] Speaker 01:
I don't think there's any way to say with any degree of confidence that a jury is going to be able to do that.

[00:06:45] Speaker 01:
And I think this is similar in the Fourth Circuit.

[00:06:48] Speaker 01:
There is a case called United States versus Smithers

[00:06:50] Speaker 01:
that had a similar argument with respect to an instruction about keeping a stash house.

[00:06:55] Speaker 01:
This was a doctor, an opiate doctor, too.

[00:06:58] Speaker 01:
And they reversed all of the counts in Smithers.

[00:07:00] Speaker 01:
And this is in the Fourth Circuit.

[00:07:02] Speaker 01:
And in US versus Smithers, there was a Cienta requirement for the keeping of the stash house.

[00:07:07] Speaker 01:
And the Fourth Circuit said, that still doesn't matter because it's ultimately going to require the jury to look back at the definition of what makes the prescription illegal.

[00:07:18] Speaker 01:
And if they're misled about that, there's no way

[00:07:20] Speaker 01:
that we can know with any confidence that they're going to get this right.

[00:07:29] Speaker 03:
I wonder if there's maybe a generality in the terminology that we're using when you say that it was illegally written.

[00:07:41] Speaker 03:
Yes.

[00:07:42] Speaker 03:
Now, I think when you're saying that you're referring to the controlled substances, but in closing argument, and the prosecutor did say that, I don't know if Mr. Brown or someone else in his office, when there was a change of plea hearing, but of course the district judge didn't accept the plea.

[00:08:00] Speaker 03:
And so it goes to trial and in closing argument, the prosecutor specifically says, as Mr. Brown quoted in his brief,

[00:08:07] Speaker 03:
that it doesn't have to be the controlled substance.

[00:08:10] Speaker 03:
In other words, if the ploy, as it was identified in the indictment, was to conceal this scheme that the pharmacist had, that he was not turning into Medicare and Medicaid

[00:08:28] Speaker 03:
the cost for the control substances, but he was having Dr. Henson call in these unnecessary expenses.

[00:08:37] Speaker 03:
Now, I don't know that you would say those are illegally written.

[00:08:41] Speaker 03:
They're certainly illegal to submit because they did not have a legitimate medical purpose.

[00:08:47] Speaker 03:
And that was the $17,000, all of which, as I understand it, was not for reimbursement under Medicare and Medicaid for control substances.

[00:08:56] Speaker 03:
They were all for the non-controlled.

[00:09:00] Speaker 01:
uh... two things on that number one the the district court had a conversation with more first trial counsel which we said in our brief about the question of whether or not uh... this was referring to the medicaid frauds referring to the non-controlled substances and he's saying to play here right yes and she said it was the control substances that they've been talking about the indictment also references the controlled substances only it doesn't talk about the non-control substances

[00:09:29] Speaker 01:
But anyway, regardless of which way you go, if you're trying to decide whether or not the prescription of the non-controlled substances was within the usual course of professional practice, then the jury is likely to look back to instruction 16 even if they're talking about non-controlled substances.

[00:09:47] Speaker 01:
The fact that there is this instruction that talks about what it requires in order to have a prescription written

[00:09:56] Speaker 01:
that is in line with the law, which instruction 16 does.

[00:10:00] Speaker 01:
It has to be an usual course of professional practice.

[00:10:03] Speaker 01:
It has to be for legitimate medical purpose.

[00:10:06] Speaker 01:
The idea that the jury's not going to confuse that, or the assumption that they're not going to confuse that in this set of circumstances is hard to believe when the totality of the argument of this case and the presentation of this case was that

[00:10:21] Speaker 01:
the prescriptions for controlled substances, and I say illegally written, were written outside the usual course of professional practice, and the pharmacist filled them.

[00:10:32] Speaker 01:
And so that means that he's guilty.

[00:10:36] Speaker 03:
Was any of the $17,000 that the prosecutor relied on at trial, was any of that for reimbursement for the controlled?

[00:10:48] Speaker 01:
The $17,000 that was discussed at the trials that you're asking me about?

[00:10:52] Speaker 03:
Right.

[00:10:53] Speaker 01:
I honestly don't know the answer to that question.

[00:10:56] Speaker 01:
Maybe Mr. Brown does, Your Honor.

[00:10:58] Speaker 01:
I don't know the answer to that question.

[00:10:59] Speaker 03:
Well, Mr. Brown, I think, has already said it in his brief.

[00:11:03] Speaker 03:
And he said it was all for the non-control system.

[00:11:06] Speaker 01:
But even if it is, the problem is making a determination that the jury was not going to be impacted and the decision was not going to be impacted.

[00:11:15] Speaker 01:
And if the decision was impacted about all of the controlled substance prescriptions, and the jury easily, there's two theories that we're suggesting.

[00:11:24] Speaker 01:
Maybe they decided on non-controlled, maybe they decided on controlled.

[00:11:28] Speaker 01:
There's no way for us to determine which one they decided on.

[00:11:32] Speaker 03:
And if they decided on- Now, people can go prejudice under a prong to a strict one.

[00:11:37] Speaker 01:
We show prejudice by showing that the jury was not, there's two possible theories.

[00:11:42] Speaker 01:
One of those theories would require the jury to go back to an instruction and include an omitted element.

[00:11:48] Speaker 01:
And as this court said in Hanson 2 and Contu, an omitted element of that kind, the only way that you could find that there wasn't prejudice would be if you could find beyond a reasonable doubt that

[00:12:04] Speaker 01:
It was basically an uncontested or uncontestable issue.

[00:12:08] Speaker 01:
And the government has an argument with the contest in this case.

[00:12:11] Speaker 02:
Let me back up.

[00:12:13] Speaker 02:
I mentioned I'd get to this later, and we're almost out of time, so I want to raise this issue.

[00:12:19] Speaker 02:
You say that instruction 16 was incorrect because it omitted an essential element.

[00:12:25] Speaker 02:
Is that correct?

[00:12:26] Speaker 02:
I do.

[00:12:28] Speaker 02:
That's the only thing wrong with it.

[00:12:29] Speaker 02:
That's the only thing you've raised about.

[00:12:31] Speaker 01:
That's correct.

[00:12:32] Speaker 02:
And what is the element that's missing?

[00:12:35] Speaker 01:
Knowledge and intent.

[00:12:36] Speaker 02:
Knowledge of what?

[00:12:38] Speaker 01:
Knowledge that the prescription is outside the usual course of professional practice.

[00:12:42] Speaker 01:
Knowledge that the prescription is without a legitimate medical purpose.

[00:12:46] Speaker 02:
Okay.

[00:12:47] Speaker 02:
So would you look at instruction 16?

[00:12:51] Speaker 02:
and look at the sentence because it does require knowledge.

[00:12:55] Speaker 02:
It says, in other words, if the government proves beyond a reasonable doubt that a prescription was knowingly dispensed or distributed, number one, in parentheses, not for a legitimate medical purpose, or two, in parentheses, outside the usual course of professional practice, then the exception to the Controlled Substance Act does not apply.

[00:13:17] Speaker 02:
It clearly requires knowingly outside the usual course of professional practice.

[00:13:24] Speaker 02:
The cases you rely on do not have number one and number two in the sentence.

[00:13:28] Speaker 02:
And that's why it was ambiguous whether the second part of the sentence outside the usual course of professional practice was modified by knowingly.

[00:13:36] Speaker 01:
The instruction in the con case is almost identical.

[00:13:40] Speaker 02:
Yeah, except it deletes number one and number two, which eliminates the ambiguity, does it not?

[00:13:47] Speaker 01:
No, I don't think it eliminates the ambiguity.

[00:13:48] Speaker 02:
You can read, let me ask, so you read, I just want to make sure I understand your position.

[00:13:54] Speaker 02:
You're saying when it says, was knowingly dispensed or distributed,

[00:13:58] Speaker 02:
number one in parentheses, not for a legitimate medical purpose, comma, or numeral two in parentheses outside the usual course of professional practice, then the language knowingly dispensed, knowingly, does not modify what's after number two?

[00:14:15] Speaker 01:
I think knowingly can just apply to the distribution.

[00:14:18] Speaker 01:
And there's been lots of argument in the case law about this.

[00:14:20] Speaker 01:
Knowingly distributed, yeah, he knows that he distributed.

[00:14:23] Speaker 01:
But the question is then does knowingly also follow through to number one and number two?

[00:14:28] Speaker 02:
Right, and if it's before number one and number two, that makes it very clear that it applies.

[00:14:33] Speaker 02:
When you say, he must intend to do number one,

[00:14:40] Speaker 02:
or number two, then it clearly requires knowingly for both purposes.

[00:14:45] Speaker 02:
What was missing in the precedents you're relying on is the number one and numeral two, which eliminates ambiguity.

[00:14:54] Speaker 02:
You disagree?

[00:14:55] Speaker 01:
Yes, because in the Kahn case, they said that it requires more than just that knowledge.

[00:15:00] Speaker 01:
In Kahn, the 10th Circuit said that what is required is knowledge that it is illegal.

[00:15:06] Speaker 01:
If you go back and look at Kahn,

[00:15:08] Speaker 01:
Conn says that the defendant must know that the prescription is written outside the usual course of professional practice and must know that doing so was illegal.

[00:15:18] Speaker 01:
So it's a higher degree of c-enter than just the knowledge that's written in instruction 16, if we take the Conn case for what it says.

[00:15:27] Speaker 02:
Okay, so you're saying that the c-enter required in Conn is not just knowing that it's outside the usual course of professional practice, but knowing that

[00:15:38] Speaker 02:
distributing or dispensing outside the usual course of professional practice is unlawful.

[00:15:47] Speaker 02:
Your same kind requires that also?

[00:15:49] Speaker 01:
Yes, because a doctor could know, if I might, if I could finish just this question.

[00:15:53] Speaker 02:
Yes, please, please.

[00:15:54] Speaker 01:
Because if a doctor, a doctor can know that he's writing a prescription is outside of the usual course, but believe he still has the authority to do that under the Controlled Substances Act.

[00:16:05] Speaker 01:
In order to be guilty, according to Contu, he has to know that he doesn't have the authority.

[00:16:10] Speaker 01:
Contu is not about knowledge of those two prongs.

[00:16:13] Speaker 01:
It's about knowledge that he was unauthorized.

[00:16:17] Speaker 01:
And that's what's completely missing.

[00:16:19] Speaker 01:
Knowledge of unauthorization is what's going on in Contu, and that is nowhere to be found.

[00:16:24] Speaker 01:
In instruction, 16, and there's no way the jury could figure that out when assessing these healthcare front counts knowledge of unauthorization is different from knowledge of being outside the course.

[00:16:36] Speaker 02:
Okay.

[00:16:37] Speaker 02:
Okay.

[00:16:37] Speaker 02:
I think I understand your point there.

[00:16:39] Speaker 01:
Thank you.

[00:16:40] Speaker 01:
And with that, I've exhausted my time.

[00:16:44] Speaker 02:
Thank you.

[00:16:44] Speaker 02:
Council Mr. Brown.

[00:16:54] Speaker 00:
Can the panel hear me?

[00:16:56] Speaker 02:
Yes.

[00:16:56] Speaker 00:
Okay.

[00:16:58] Speaker 00:
Good morning, Your Honors.

[00:16:59] Speaker 00:
James Brown for the United States.

[00:17:00] Speaker 00:
I'd like to start with an issue that the panel did not touch on during my colleague's presentation, which is the issue of the waiver of the claim that we're now considering whether or not his initial 2255 claim even brought up any challenge accounts three and four.

[00:17:17] Speaker 00:
We've argued that it did not.

[00:17:19] Speaker 00:
He presented that claim in an untimely manner.

[00:17:23] Speaker 00:
is his claim of ineffective assistance related exclusively to instruction number 16, and instruction number 16 was relevant only to counts one and two.

[00:17:34] Speaker 00:
It was not relevant in any way, shape, or form to counts three and four.

[00:17:39] Speaker 00:
And in fact, the district court gave an instruction telling the jury in instruction number five that what they decided on one count

[00:17:49] Speaker 00:
did not require them to make a decision on another count.

[00:17:53] Speaker 00:
That's instruction five.

[00:17:54] Speaker 00:
We think instruction five basically told the jury that counts three and four were not parasitic on accounts one and two.

[00:18:00] Speaker 00:
There's no other way to read instruction five.

[00:18:03] Speaker 00:
He didn't object to instruction five below at any point, and he didn't object on appeal.

[00:18:09] Speaker 00:
He doesn't object now.

[00:18:10] Speaker 00:
That's a correct statement of the law.

[00:18:12] Speaker 00:
And it basically says that accounts three and four are not parasitic on accounts one and two.

[00:18:17] Speaker 00:
That basically

[00:18:19] Speaker 00:
binds his whole argument.

[00:18:21] Speaker 03:
Well, the judge also instructed the jury on paragraph 48 of the indictment that alleges a scheme to control health care fraud, quote, by distributing and dispensing controlled substances illegally, that, you know, even crediting your point about instruction five about the difference in the counts, paragraph 48 of the indictment, according to

[00:18:49] Speaker 03:
Appellants Council does make counts three and four parasitic on counts one and two explicitly.

[00:18:57] Speaker 03:
What's wrong with that argument?

[00:18:59] Speaker 00:
Well, first of all, that argument is outside the scope of the certificate of appealability.

[00:19:03] Speaker 00:
That's basically a variance argument that he should have raised on direct appeal to challenge counts three and four.

[00:19:08] Speaker 00:
He did not.

[00:19:09] Speaker 00:
He raises that the first time.

[00:19:11] Speaker 00:
his brief here, he didn't raise it below at any point.

[00:19:14] Speaker 00:
That's basically sort of a perfunctory argument raised now.

[00:19:19] Speaker 00:
What we have up to this point was we have instruction five, which says counts three and four are not parasitic on counts one and two.

[00:19:27] Speaker 00:
And then what's wrong with that argument, if you want to get past the fact that it's not even cognizable in this proceeding, is the fact that

[00:19:35] Speaker 00:
We, in order to determine whether somebody is guilty, you look at the instructions given to the jury and the elements in those instructions to consider the guilt.

[00:19:44] Speaker 00:
Here, he didn't object to the instructions in counts three and four.

[00:19:47] Speaker 00:
Counts three and four allowed the jury to determine whether or not he engaged in a scheme to defraud and had specific intent to defraud.

[00:19:56] Speaker 00:
The jury could have looked at, as the court pointed out in my colleague's presentation, the non-controlled substances for that, which had nothing to do with violations of the Controlled Substances Act.

[00:20:07] Speaker 03:
Can I test that a little bit, Mr. Brown?

[00:20:12] Speaker 03:
And so let's say I'm a jury and I hear Judge Belgrin instruct on, you know, read aloud in paragraph 48, read aloud instruction 5, 16, and 18,

[00:20:26] Speaker 03:
And I, as a jury, am thinking, you know, why would it be unreasonable for me as a juror to think, okay, well, we do consider the counts separately.

[00:20:37] Speaker 03:
But when I decide whether or not the pharmacist, you know, defrauded Medicare and Medicaid, I am looking at whether or not he

[00:20:52] Speaker 03:
distributed and dispensed controlled substances illegally.

[00:20:57] Speaker 03:
That's the illegal distribution.

[00:20:58] Speaker 03:
So his argument that counts three and four are parasitic seems

[00:21:06] Speaker 03:
credible, irrespective of your argument about considering the counts separately.

[00:21:12] Speaker 03:
Yes, you consider the counts separately like in any case, but in this particular case, the judge seemed to explicitly make three and four parasitic on one and two.

[00:21:24] Speaker 03:
What's wrong with that?

[00:21:25] Speaker 00:
Well, the jurors were not allowed to disregard instruction number five under any circumstance.

[00:21:30] Speaker 03:
Or paragraph, or the instruction reading aloud 48.

[00:21:33] Speaker 00:
Well, that was basically sort of background given in the indictment, but the jurors weren't allowed to disregard the instructions, and the instructions didn't require that.

[00:21:43] Speaker 00:
But also keep in mind, again, this is a variance argument that should have been raised under appeal.

[00:21:48] Speaker 03:
Yeah, I think that's where maybe you asked my question inartfully.

[00:21:52] Speaker 03:
I'm not talking about a variance argument.

[00:21:54] Speaker 03:
The whole theory of the ineffective assistance based on prong two of Strickland

[00:21:59] Speaker 03:
that the appellant is making is that counts three and four are parasitic on counts one and two.

[00:22:05] Speaker 03:
That's the theme of the appellant's counsel, as I understand it, maybe wrongly.

[00:22:11] Speaker 03:
And so I don't care.

[00:22:12] Speaker 03:
I don't think Mr. Ridley cares of whether or not there was a variance from the indictment, but we're all talking about instructions and how the jury is going to process those instructions.

[00:22:25] Speaker 03:
That's what I'm trying to get at.

[00:22:27] Speaker 00:
Right.

[00:22:27] Speaker 00:
And my response is that Jerry was not allowed to ignore instruction number five, which told him that counts three and four were not parasitic on counts one and two.

[00:22:36] Speaker 00:
They were not allowed to ignore that instruction.

[00:22:39] Speaker 00:
So they may have considered that as background information, but that doesn't mean they were allowed to ignore instruction number five and they weren't allowed to ignore it.

[00:22:49] Speaker 03:
How do we get around Khan then?

[00:22:51] Speaker 00:
Conn, Your Honor, in my colleague's presentation, I think pointed out, or was it Judge Hart's, pointed out how we get around Conn and Henson.

[00:22:59] Speaker 00:
It's very easy.

[00:23:01] Speaker 00:
In Henson, the money laundering counts were parasitic as a matter of law on the drug counts because the money laundering proceeds had to come from a specified unlawful activity.

[00:23:13] Speaker 00:
And the specified unlawful activity was the conspiracy charge, the conspiracy drug charge.

[00:23:19] Speaker 00:
That's parasitic as a matter of law.

[00:23:21] Speaker 00:
He's claiming parasiticness based on basically evidentiary overlap.

[00:23:26] Speaker 00:
And that is not controlling as to whether a count is parasitic.

[00:23:29] Speaker 00:
You look at an element space test, which is basically what Henson did.

[00:23:35] Speaker 00:
The money laundering counts were parasitic as a matter of law, as the panel has already pointed out.

[00:23:41] Speaker 00:
Here they were not.

[00:23:44] Speaker 03:
So you think Khan was correctly decided then?

[00:23:49] Speaker 00:
We think Conn was correctly decided, but if you go to pages 1321 and 1322 of Conn, the court finds that the counts that were related to the conspiracy conviction that was overturned were basically parasitic on that conspiracy conviction as a matter of law.

[00:24:10] Speaker 00:
The 924C, the money laundering, I mean, a money laundering requires a specified unlawful activity as an element of defense.

[00:24:18] Speaker 00:
The specified and lawful activity was conspiracy to distribute the drugs.

[00:24:23] Speaker 00:
That's parasitic, parasitic as a matter of law.

[00:24:26] Speaker 00:
And it went the same way for some other counts of CON2.

[00:24:29] Speaker 00:
So that doesn't really help him.

[00:24:32] Speaker 00:
It doesn't get him anywhere for this argument.

[00:24:34] Speaker 00:
But let me finish up, if I may, on the way, and then I'll move to the merits.

[00:24:38] Speaker 00:
Basically, the question here is whether the district court abused its discretion in denying defendants claim as to counts three and four.

[00:24:49] Speaker 00:
And we've argued that the defendant waived that claim, and that claim is also successive under this court's law.

[00:24:56] Speaker 00:
And the district court cannot abuse its discretion by failing to consider a waived claim or a successive claim that it does not even have jurisdiction

[00:25:05] Speaker 00:
to consider.

[00:25:06] Speaker 00:
Therefore, there's no abuse of discretion.

[00:25:08] Speaker 00:
The court found that it was untimely presented.

[00:25:11] Speaker 00:
The court said that would be a sufficient basis by itself to not consider the claim.

[00:25:15] Speaker 00:
But the court went on to address the merits.

[00:25:17] Speaker 00:
There's no abuse of discretion in not considering a successive claim that the court did not even have jurisdiction to adjudicate.

[00:25:24] Speaker 03:
In making that argument, Mr. Brown, or making that rationale, did Judge Milgram commit a factual error in denying the motion to reconsider?

[00:25:36] Speaker 03:
He said that the defendant had not made that argument until the motion to reconsider.

[00:25:45] Speaker 03:
I think we all agree, and you've acknowledged in your briefing, that he did include that in his reply brief before the motion to reconsider.

[00:25:54] Speaker 03:
And, you know, maybe Judge Malgren would have said it was too late to submit that in the reply brief, but that's not what he said.

[00:26:02] Speaker 03:
He said that he didn't submit that argument at all until the motion reconsidered.

[00:26:07] Speaker 03:
That's two different things, and that's actually inaccurate, isn't it?

[00:26:13] Speaker 00:
Well, okay, what I'm relying on is supplemental volume two, page 83 and 84.

[00:26:18] Speaker 00:
And, wait, wait, I'm sorry, supplemental volume two, page

[00:26:23] Speaker 00:
85 and 86, so any fact and accuracy should be judged against those pages.

[00:26:30] Speaker 00:
What I'm trying to use those pages is to show the proposition that he did not put on any evidence or argument as to counts three and four, and

[00:26:40] Speaker 00:
At the evidentiary hearing, he says, this alone is enough to deny defendants motion as a motion for reconsideration is an improper place to assert arguments for the first time.

[00:26:49] Speaker 03:
And that's wrong.

[00:26:50] Speaker 03:
He submitted it before the motion reconsider.

[00:26:53] Speaker 03:
He submitted it in the reply brief.

[00:26:58] Speaker 00:
well okay then then i i see what the court is saying i wasn't understanding what the court was saying i see what the court is saying okay anyway it still doesn't take away from my main point the claim was untimely presented and the court did not abuse his discretion in rejecting it on that basis the reply brief was too late to bring it anyway the reply brief was several months late and the reply was filed

[00:27:20] Speaker 00:
On March 17, 2023, his initial claim was brought on August 2, 2022.

[00:27:27] Speaker 00:
That's when he was required to bring it.

[00:27:28] Speaker 00:
So it was still too late, even if it was raised in the reply brief.

[00:27:31] Speaker 00:
The factual inaccuracy of the district court is irrelevant here.

[00:27:36] Speaker 00:
So no abuse of discretion in denying a claim that is out of time, waived, and successive.

[00:27:42] Speaker 00:
That's the major point.

[00:27:44] Speaker 00:
But let me move to the merits.

[00:27:47] Speaker 00:
First of all, I think we've shown how his reliance on Henson and Kahn is completely inapt.

[00:27:54] Speaker 00:
Those cases had, the money laundering counts were parasitic as a matter of law.

[00:28:00] Speaker 00:
Here the healthcare fraud counts were not parasitic as a matter of law.

[00:28:04] Speaker 00:
Count five instructed that they were not parasitic as a matter of law.

[00:28:08] Speaker 00:
The jury was required to obey that instruction.

[00:28:11] Speaker 00:
Number two, there was the,

[00:28:15] Speaker 00:
The elements, as I think Judge Hartz pointed out in counts three and four, were materially different in the elements of counts one and two.

[00:28:22] Speaker 00:
The jury had the opportunity to judge the evidence in accordance with the jury instruction on instruction 18, to which defendant did not object below or now at any time.

[00:28:34] Speaker 00:
And the jury considered the evidence and found that he basically committed, devised a scheme to defraud and had the specific intent to defraud because he filled

[00:28:43] Speaker 00:
prescriptions that were illegitimate.

[00:28:46] Speaker 00:
There was substantial testimony to show that the prescriptions were illegitimate.

[00:28:49] Speaker 00:
Corby Harsha, whose testimony I think we put on on page 54 in our brief, talked about how the prescriptions were medically unnecessary and therefore illegitimate.

[00:29:02] Speaker 00:
We showed his intent, and he even during his evidentiary presentation at trial, at least in closing argument, admitted that Henson

[00:29:13] Speaker 00:
made illegitimate prescriptions.

[00:29:15] Speaker 00:
He didn't contest Henson-Sienter at any time.

[00:29:21] Speaker 00:
And that was sort of part of his argument, that he was tricked by Henson, who was devious.

[00:29:26] Speaker 00:
That was his defense.

[00:29:31] Speaker 00:
Ignasiak.

[00:29:32] Speaker 00:
The defendant relies on the Ignasiak case, stating that Ignasiak controls this, it does not control that.

[00:29:41] Speaker 00:
Ignasiak has a 2012 case.

[00:29:44] Speaker 00:
The Rwand issue was not even there.

[00:29:47] Speaker 00:
Ignasiak does not have this competition between the Rwand instruction and healthcare fraud instruction and comparing the elements and comparing the evidence and seeing how the evidence fits within those elements, those two different things for purposes of citing whether there was any Rwand error.

[00:30:05] Speaker 00:
The issue in Ignasiak was whether a confrontation clause violation affected all counts.

[00:30:11] Speaker 00:
That's not what we have here.

[00:30:13] Speaker 00:
And to the extent that Ignasiak talks about evidence relating to the drug counts, here we don't have a pure Controlled Substances Act scheme to defraud because our scheme to defraud for the healthcare fraud counts on three and four

[00:30:33] Speaker 00:
uh, involves non-controlled substances as, as we, as we point out in our brief and as we argued a trial.

[00:30:40] Speaker 00:
So, so basically the Controlled Substances Act doesn't even affect, uh, Mr. Attugne's dispensing of the non-controlled substances as part of a scheme to defraud.

[00:30:54] Speaker 00:
I think that really covers most of what I, what I want to say.

[00:30:57] Speaker 00:
I, I'll take any questions at this point if the court has any.

[00:31:04] Speaker 02:
Well, thank you, Mr. Brown.

[00:31:06] Speaker 02:
I don't have a question.

[00:31:07] Speaker 02:
Doesn't look like any of us have a question at this point.

[00:31:10] Speaker 02:
Okay, thank you.

[00:31:12] Speaker 02:
So, cases submitted.

[00:31:14] Speaker 02:
Counselor Hughes, thank you, gentlemen.