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Case number 21-3039, United States of America versus Yvonne Lamont Robinson at balance.

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Mr. Mesquite for the at balance, Mr. McGovern for the at holy.

[00:00:12] Speaker 01:
Good morning, counsel.

[00:00:16] Speaker 05:
Good morning, your honor.

[00:00:23] Speaker 03:
With the court's indulgence.

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Yes.

[00:00:26] Speaker 05:
Good morning and may it please the court, Michael Messitz of Williams and Connolly for Appellant Ivan Robinson.

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I'd like to reserve two minutes of my time for rebuttal and I'll keep my eye on the clock.

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I'd like to focus my time today on the Brady violation.

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The government admitted below that, quote, the crux of this case, and quote, the only element in dispute was whether Dr. Robinson was prescribing medications in good faith.

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An essential part of the government's theory was that when Dr. Robinson threatened to report pill-seeking patients, he was, quote, just putting on speeches, but didn't turn any of them away.

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But the government fails to produce information from its own files.

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showing that Dr. Robinson was telling the truth.

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This evidence was directly inconsistent with the government's theories of the case, and its suppression was material.

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Dr. Robinson, in fact, knew that this information would be essential to his defense, and so he repeatedly requested from the government records of his reporting pill seekers to authorities.

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In response to his requests, the government repeatedly told him that no prior reports existed, reversing course only after trial.

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And it failed to disclose a detailed CCN report of an incident in which Dr. Robinson detected a pill seeker, reported her to authorities, and took the prescription back in the police's presence.

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Now the district court correctly recognized that these reports were favorable to Dr. Robinson.

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But the court erred in concluding that they were not material.

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Suppressed reports would have been powerful evidence that Dr. Robinson engaged in good faith treatment of his patients, that he was not, as the government suggested, you know, knowledgeable that his patients were pill seekers, but somehow complicit in prescribing the medication.

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District courts take on materiality, and this is perhaps going to be a quibble rather than an analysis.

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is that the case was so overwhelming that this could not have made any difference.

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And while that might perhaps be styled as a harmless error decision rather than as a materiality of withholding decision, why isn't that correct?

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This is a pretty overwhelming case, wouldn't it?

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Well, Your Honor, my first response there would be that this court and the Supreme Court have been very clear that the Brady materiality analysis is not a sufficiency of the evidence

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So the question is whether in any reasonable likelihood it could have affected the judgment of a jury.

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The defendant, and this is weary, need not show that he's more likely than not to have been acquitted.

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I think Johnson, quoting Kyle's, this court's opinion, says, would the evidence have resulted in a markedly weaker case for the prosecution or a markedly stronger one for the defense?

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And that's the case here, Your Honor, to get directly to the record.

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The government was able to tell the jury below.

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Dr. Robinson knew these patients were pill seekers.

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He never reported them.

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And in fact, the suppressed evidence would have been powerful, extrinsic evidence, corroborating evidence that he did.

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And so in Ray Seald's case, this court found that corroborating evidence when the government calls into account testimony, his material, Long v. Hooks, the recent Fourth Circuit case, I think is also highly on point here.

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Now, I will say with respect to the rest of the evidence in the record,

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You know, there is evidence from patients that, for example, they felt they had to lie to Dr. Robinson in order to get their prescriptions.

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His prescriptions, was it routine that he gave a 30-milligram prescription for it?

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Your Honor, that was part of his patented protocol.

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The answer would be yes, then, right?

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It was routine that he gave 30-milligram.

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The answer would be yes.

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And Matty Pills sent a prescription?

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Uh, your honor, I believe that that is correct, although I'm less certain about the prescriptions were so large in what the intent that the pharmacists were alarmed enough that they alerted authorities that not also certain pharmacists testified to that only did not tie that to any and he insisted on being paid

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with money orders, blank money orders.

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Why was that?

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Your honor, that's not unusual and witnesses testified it's not unusual.

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These are people who don't have insurance or whose insurance does not cover this.

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And so I think the government has had a pursuit of guilt by Gestalt.

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Theory here, the idea that, well, they're not familiar with what this practice looks like.

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In fact, I think the factual record as laid out in our briefs are quite complex, such that in particular, this suppressed evidence could very reasonably have swayed a juror in considering the critical issue here, which is mens rea.

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And I think Rouhan underscores that.

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This court and the Supreme Court

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have been particularly attentive in questions where intent separates innocent from wrongful conduct.

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The question of intent is incredibly important, and the government conceded that below.

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So here, the suppressed reports would have shown that when Dr. Robinson was aware of pill seekers, he reported them.

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That leads to a very strong inference that he was not aware that the patients charged in the indictment were merely seeking pills.

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And indeed, each of them had actual injuries.

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each of them at Dr. Robinson's request brought in MRIs and you know there's testimony that you followed up with them to ensure that they were following the treatment protocol.

[00:05:54] Speaker 07:
There is some gestalt to the government's case but there's also a fair amount of proof of individual instances right there 40 something counts which are supported by

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testimony from the undercover agents and the pill seeker patients about what happened in their individual cases with minimal consultation and, and alike.

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And your honor, I don't think that the court should be concerned about that.

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I have two primary responses.

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You know, the first response is that the government goes out of its way to say, well, patients' views about whether or not they were adequately treated is irrelevant.

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You know, we don't need to consider that.

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All the evidence in the record shows that the straight leg test, which is the standard diagnostic test, doesn't take very long.

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The other thing is that the government pursued really a wholesale theory, right?

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Their wholesale theory was this entire thing is a sham.

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And so I think the government's central issue- I guess it seems to me they pursued both.

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Okay.

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Wholesale and retail.

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Well, and I think then their theory as to mens rea, for example.

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is that all of this was a sham, right?

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They didn't claim that, well, he knew certain people were pill seekers.

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He didn't know other people were pill seekers.

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That's kind of the suggestion on appeal that they make as to why, you know, some of these reports might not have been material.

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Assuming the government's theory, why does the government's theory have to be that all of them were a sham in order for it still to be a sham there that is a violation?

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Well, Your Honor.

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You're repackaging

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the theory and it's not necessary that he could also have legitimate patients and still be violating the statute in the instances that were billed.

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And your honor, the government certainly could have argued that the jury taking this Brady material into account.

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The problem is that argument is substantially more complicated than the theory they were permitted to advance.

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I don't see the complication.

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Well, so think about your

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You can't deny that there have been medical professionals around the country who were medical professionals with legitimate patients who were nonetheless convicted of... I don't deny that, Your Honor, but that's not... That's not very complicated, Counsel.

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Well, the government here came in and they said, look, he knew all of these people were pill seekers.

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This was a classic pill mill.

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There was no treatment here.

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He never reported any of these people.

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They suppress evidence showing that he in fact did report pill seekers when he was aware of them.

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And so the government could have argued- But there was some evidence to that effect that was not suppressed, right?

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There was the DEA report, which is incredibly bare bones.

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And you can think of the DEA report as focusing on the pill seeker.

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The CCN report, which is suppressed, focuses on what Dr. Robinson did to detect.

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And that was not disclosed.

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That's at A189.

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There's a little paragraph.

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that contrary to what the government said, Dr. Robinson checked the referral, he detected a pill seeker, and then he actually took his prescription back in the presence of police.

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And I see I'm running into my rebuttal time.

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I just want to squarely answer your honor's question, which is that the government was able to come in and say he never reported anyone.

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Now, in fact, had this evidence been in the record, the government would have had to come in and say to the jury, well, OK, he reported some people.

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But he did so only as part of this scheme and to throw people off the scent.

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And he knew other people were pill seekers, but he didn't report them.

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And that is a substantially harder inference for the government to prove beyond a reasonable doubt.

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And that's why the Brady evidence is material.

[00:09:53] Speaker 01:
It seems to me both sides here were trying to have their cake and eat it too, because the government was just prosecuting the particular prescriptions at issue, not arguing or trying to prove to the jury that the entire practice was corrupt.

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And the evidence that you're arguing is material

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didn't bear on the prescriptions or patients at issue in the indictment.

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It dealt with other ones.

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And so it seems to me at this point, the defense wants to have the broader view.

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But at many other times during the trial, the defense was arguing to limit the evidence to these

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prescriptions in these patients that are charged and so And the government times did certainly seem to be trying to have a broader inference that both were trying to go large and small but given that the indictment involves specific individuals and specific descriptions and This Brady evidence and at least as I read the government statement to which you refer when he said never reported any of these persons that meant the people in the indictment

[00:11:03] Speaker 01:
which is accurate.

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They were never reported, as I understand, as killer reporters.

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And so now you're, so help me understand one more time how then it's material that he reported other persons.

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I mean, I get your argument about why the DEA report and the CCN report is so much more valuable than, or sorry, the CCN report is so much more valuable, but it wasn't speaking to the people at issue and the indictment.

[00:11:25] Speaker 01:
And that's what the government statement was about.

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And that's what the case was about.

[00:11:29] Speaker 05:
You know, your honor, if I may briefly respond, the fact that he reported other pill seekers when he detected them strongly suggests that he did not know these individuals.

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And that weakens the corresponding inference from the government that he was knowingly and intentionally prescribing these medications outside the course of ordinary medical practice.

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So it's true that the individuals in the indictment, he did not report.

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But the fact that he reported all their other pill seekers when he was aware of them,

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gives strong evidence that these pill seekers successfully deceived him.

[00:12:00] Speaker 01:
Were these other pill seekers, for example, in the CCN report, reported in the same timeframe as when the indictment is covering the same, those patients were being treated, or was it?

[00:12:13] Speaker 01:
Yes, Your Honor.

[00:12:14] Speaker 05:
So there are two sets of suppressed reports here.

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The prior reports were from 2011.

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The CCN and DEA reports, I believe, were from 2013.

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And in fact, that entire period is an issue that the district court

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aired below and saying that 2011 was somehow removed from time.

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And I don't really see the government defending that conclusion.

[00:12:33] Speaker 01:
But the CCN report, one that has language you most like about Dr. Robinson's practice, that one was during the same time frame as charged in this case.

[00:12:45] Speaker 01:
Yes, your honor.

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While he was treating these individuals, he was reporting kill seekers simultaneously.

[00:12:52] Speaker 05:
Yes.

[00:12:52] Speaker 05:
Yes, your honor.

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And indeed, in 2011, he was also

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treating one of the patients charged in the indictment.

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So that 2011 period is relevant as well.

[00:13:03] Speaker 05:
I see I have run through my time.

[00:13:05] Speaker 01:
We'll give you some time for rebuttal.

[00:13:06] Speaker 05:
I appreciate that.

[00:13:07] Speaker 01:
Any more questions?

[00:13:09] Speaker 07:
Just one more, which is when we assess materiality, we have to look at counterfactually at what would have happened had the material been disclosed.

[00:13:20] Speaker 07:
And part of that is you get to

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you get to put in the prior reports and make the arguments to the jury that you've made here.

[00:13:30] Speaker 07:
Part of that is also that, um, agent prior would have testified that she thought this reporting, um, was a sham.

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Doesn't that tend to mitigate the impact of

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what you could have done have this been disclosed.

[00:13:51] Speaker 05:
So your honor that's certainly what the government offers what happened terrific question the jury went essential question for the jury not something that this court should evaluate on appeal, but if the government wants to go in and argue.

[00:14:03] Speaker 05:
Well, he knew some people were pill seekers he

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didn't report them.

[00:14:08] Speaker 05:
He knew other people were pill seekers and he did report them.

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All of this is part of kind of an increasingly elaborate scheme.

[00:14:15] Speaker 05:
They can argue that to the jury and the jury can weigh that in the first instance.

[00:14:18] Speaker 05:
But I think that's not a reason to find this evidence material as a matter of law.

[00:14:24] Speaker 03:
Thank you.

[00:14:25] Speaker 03:
Thank you.

[00:14:40] Speaker 03:
Good morning.

[00:14:40] Speaker 03:
May it please the court, Michael McGovern, on behalf of the Appellee of the United States.

[00:14:45] Speaker 04:
Over the course of nearly a month, a jury was presented with evidence from the government and from Nurse Robinson regarding his treatment of 10 individuals prescribing them on 43 occasions oxycodone.

[00:15:01] Speaker 04:
Evidence that included testimonial eyewitness accounts that Dr. Robinson had reported a pill seeker and called the police on those pill seekers.

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Testimonial evidence that included testimony by his office manager that Dr. Robinson kept a file of bad actors and was attempting to track individuals who were pill seeker.

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At the conclusion of all of the voluminous evidence,

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The jury deliberated, considered the arguments of both of the parties, and determined beyond a reasonable doubt that on 42 of the 43 occasions, nurse practitioner Robinson prescribed oxycodone intentionally and knowingly in violation without a legitimate medical purpose and outside of the course of the usual practice of business.

[00:15:53] Speaker 07:
The evidence of reporting the pill seekers that came in was from his side of that transaction.

[00:16:02] Speaker 07:
And you all attacked that as coming from self-interested and biased witnesses.

[00:16:10] Speaker 04:
Well, Your Honor, I'd like to correct that a little bit.

[00:16:12] Speaker 04:
Yes.

[00:16:13] Speaker 04:
Both of the statements of pill seeking that were introduced were by witnesses that Dr. Robinson presented.

[00:16:20] Speaker 04:
One of those credibility you question, right?

[00:16:23] Speaker 04:
We question the credibility of his office manager again is incredibly close, but in closing arguments, the credibility of Dr. Erica Brock, who was an individual who testified, she was present when there were reports with authorities and authorities arrived at the office in response to those reports.

[00:16:39] Speaker 04:
Her credibility on enclosing argument was never contested by the government.

[00:16:46] Speaker 01:
Does that matter?

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The government argues in fora after fora that official records, official statements, official communications by the government

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have particular force.

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And so whether it was a witness that you had a lot to impugn or not, it was his witness.

[00:17:09] Speaker 01:
And the value of this report, or the reports, all the reports at issue here, particularly the CCN report, was that it was the government recording and describing what he did.

[00:17:21] Speaker 04:
Well, Your Honor, that was a strategic trial decision that was made by defense counsel that they're now second guessing.

[00:17:27] Speaker 01:
Wait, wait, wait.

[00:17:28] Speaker 01:
I'm sorry.

[00:17:29] Speaker 01:
I think I wasn't clear.

[00:17:29] Speaker 01:
What strategic trial?

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This is a suppressed information.

[00:17:32] Speaker 04:
The defense counsel had access to government reports of a pill seeker being arrested.

[00:17:37] Speaker 01:
It had a DDA report.

[00:17:38] Speaker 01:
It said the CCN report details exactly what he did.

[00:17:44] Speaker 01:
Just to step back for a second.

[00:17:47] Speaker 01:
Are you trying to have this court hold

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that the government doesn't have to turn over its own documentation in this situation?

[00:18:01] Speaker 04:
The government hasn't contended either that the CCN or the prior reports were not favorable and were not disclosed later.

[00:18:09] Speaker 04:
Why were they not disclosed?

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Why did that happen?

[00:18:12] Speaker 04:
There's no explanation on the record as to why the particular CCN report was not disclosed.

[00:18:20] Speaker 04:
We will note that the information in the CCN report and the incident to which the CCN report related was disclosed in the DBA-6, which is a much more extensive... That's not answering the question as to how it could happen if you didn't turn these over.

[00:18:37] Speaker 06:
The presiding judge just asked you, you're not arguing that you didn't need to turn those over.

[00:18:43] Speaker 06:
I'm going back to Stephen's case and before we have told the government repeatedly that don't you be making materiality decisions if it's evidence that's relevant, turn it over.

[00:19:01] Speaker 06:
But why was that not done in this case?

[00:19:03] Speaker 04:
It wasn't done in this case because the government, the prosecutors that were providing the discovery weren't aware of the reports.

[00:19:10] Speaker 04:
They did reach out to Agent Fire and when they first spoke to Agent Fire, her response was that she didn't believe that she had any reports from the incident that was discussed.

[00:19:21] Speaker 04:
It wasn't until later when an agent required recall that there was another individual present at the briefing that they contacted that agent and he was able to locate the reports.

[00:19:32] Speaker 04:
The reports were filed.

[00:19:33] Speaker 01:
Sorry, sorry.

[00:19:36] Speaker 01:
When agents make reports, that's like one of the biggest things they do.

[00:19:42] Speaker 01:
And so when there was said this known contact, this known communication and interchange, and a DEA agent says,

[00:19:52] Speaker 01:
I don't think there was a report.

[00:19:55] Speaker 01:
The prosecution goes, okay, there's no records.

[00:19:57] Speaker 01:
You don't say go search the records.

[00:20:00] Speaker 01:
Who else was at the meeting?

[00:20:03] Speaker 01:
It just seems to me confounding that you have the two prior reports and the CCN report, which you want to blame them for not having found.

[00:20:13] Speaker 01:
And yet the government didn't do any due diligence, it seems.

[00:20:18] Speaker 01:
I'm happy to hear you tell me otherwise, but how it did, I think I'm asking the same question as Judge Santana.

[00:20:24] Speaker 01:
How on earth does this happen?

[00:20:26] Speaker 01:
And then it's found surprise right after trial when one normally isn't doing discovery.

[00:20:34] Speaker 04:
So, Your Honor, to answer your question, there's an extensive discussion of what efforts the government undertook to locate these reports in the record.

[00:20:42] Speaker 04:
And that appears that A199, it is the filing that the government submitted when it provided the prior reports.

[00:20:49] Speaker 04:
And it details the numerous discussions that were had and the numerous efforts, including the search of DEA files, that were undertaken and how it was.

[00:20:58] Speaker 01:
I thought you told Judge Sintel it wasn't in the record what happened.

[00:21:01] Speaker 01:
So now you're telling me there's a long record explanation of why they weren't turned over?

[00:21:05] Speaker 04:
The prior reports, Your Honor, yes.

[00:21:08] Speaker 01:
But I'm talking about the CCN report as well, all three.

[00:21:12] Speaker 01:
I just want to be clear, you're saying P or YOR, and not, right, prior reports.

[00:21:17] Speaker 01:
Prior reports, yes.

[00:21:19] Speaker 01:
But there's also the CCN report, which is the one that they're most interested in.

[00:21:22] Speaker 01:
I mean, none of it

[00:21:24] Speaker 01:
I should have been suppressed.

[00:21:27] Speaker 01:
What's the explanation on the CCN report?

[00:21:30] Speaker 01:
Is that the same one?

[00:21:31] Speaker 04:
I'm sorry, Your Honor.

[00:21:32] Speaker 01:
What is the explanation on why the CCN report wasn't turned over?

[00:21:36] Speaker 04:
The record doesn't indicate specifically why the CCN report was not turned over prior, only that it related to

[00:21:42] Speaker 04:
an incident that the DEA-6 was provided and the DEA-6 provides extensive information about the arrest of the pill seeker and the fact that that arrest was based on the knowledge that MRI that they presented was fraudulent.

[00:21:59] Speaker 04:
That information is contained within the DEA-6 for that report.

[00:22:03] Speaker 01:
I understand you've got the argument he had the DEA-6, but they've got a very, at least to me,

[00:22:09] Speaker 01:
important argument that CCN report had independent value.

[00:22:16] Speaker 01:
And the government has no explanation.

[00:22:19] Speaker 01:
It was found later, right?

[00:22:20] Speaker 01:
After trial?

[00:22:23] Speaker 01:
How was it found then, but not earlier?

[00:22:26] Speaker 04:
And again, Your Honor, the record doesn't indicate precisely how the CCN report was found.

[00:22:31] Speaker 01:
Can you understand why that's really troubling?

[00:22:33] Speaker 01:
At least to me, I can't speak for my colleagues, but that's deeply troubling to me that

[00:22:38] Speaker 01:
It's not found pre-trial.

[00:22:40] Speaker 01:
You had a DEA report too, and we're aware of it.

[00:22:44] Speaker 01:
And then suddenly it appears after trial and nobody's given any explanation at all?

[00:22:50] Speaker 04:
Your Honor, when this issue occurred, the government

[00:22:55] Speaker 04:
argued in the court found that there was no ultimate grade violation, which is the issue on appeal, which requires that these reports be material in order to grant the remedy of a new trial, which means that this court must find that the suppression of this.

[00:23:11] Speaker 01:
Sorry, my question was, do you understand why we find it quite troubling?

[00:23:14] Speaker 04:
Yes.

[00:23:15] Speaker 01:
And so what is the government doing to prevent these errors from happening again?

[00:23:20] Speaker 01:
As Sintel pointed out, we've been warning the government for quite some time about the terrible consequences.

[00:23:28] Speaker 01:
And this is a case where the jury acquitted on one charge.

[00:23:32] Speaker 01:
So we have to do our job post hoc.

[00:23:36] Speaker 01:
The whole point of Brady is that the government is supposed to do this upfront, not make a materiality analysis for your trial, and just turn these things over.

[00:23:44] Speaker 04:
Your honor, I apologize by gave you the impression that the reason they weren't turned over was because there was a free trial materiality determination by the government.

[00:23:53] Speaker 06:
That was not that's what we're worried about.

[00:23:55] Speaker 06:
That was that is part of what we've been saying.

[00:23:59] Speaker 06:
As I said, in the Stevens case, but backward, even when I was a district judge in another circuit, we that you don't have to decide the material.

[00:24:08] Speaker 06:
That's something that can be seen by the defense and court.

[00:24:13] Speaker 06:
Uh,

[00:24:14] Speaker 06:
It's merely relevant.

[00:24:17] Speaker 06:
Why do you not turn it over?

[00:24:18] Speaker 06:
What's the downside to going ahead and complying with your obligation?

[00:24:22] Speaker 04:
And your honor, what I'll note is that the district court here found that the government had performed a diligent search.

[00:24:28] Speaker 04:
This was not an issue of the government locating reports, determining they were not material and not turning them over.

[00:24:34] Speaker 06:
I thought you just said that was with respect to one of the

[00:24:38] Speaker 06:
There was a pre-trial materiality determination, didn't you just say that?

[00:24:41] Speaker 04:
No, Your Honor, there was not a pre-trial materiality determination with respect to either the CCN or the prior PRYOR reports.

[00:24:51] Speaker 04:
What I will also note, evidence that there was a diligent search by the government includes the fact that they did turn over multiple hundreds of pages from the St.

[00:25:00] Speaker 04:
Mary's County Police Department concerning the very investigation that the prior reports

[00:25:08] Speaker 06:
deal that may be enough to make this together.

[00:25:12] Speaker 06:
Everything I have to make this a harmless violation of the Brady harmless error on your part.

[00:25:18] Speaker 06:
But I don't like the sense that the government is still trying to make materiality determinations and withholding evidence.

[00:25:29] Speaker 06:
Some states now have actually passed open file statutes requiring the state to quit

[00:25:38] Speaker 06:
attempting to withhold evidence based on their own materiality determination.

[00:25:44] Speaker 06:
We don't have that statute.

[00:25:46] Speaker 06:
I'm sorry.

[00:25:46] Speaker 06:
We don't have it, but we don't have that.

[00:25:49] Speaker 06:
Why isn't that the way to proceed?

[00:25:51] Speaker 06:
If the government's got it and it's good evidence,

[00:25:55] Speaker 06:
What's the downside to letting the defense have it?

[00:25:57] Speaker 04:
Yes, your honor.

[00:25:58] Speaker 04:
But I'll know that even an open file discovery policy were instituted in this case would not have discovered the prior reports.

[00:26:06] Speaker 04:
The prior reports were not about the other within the same file for Dr Robinson.

[00:26:10] Speaker 04:
They weren't saved in a minute.

[00:26:11] Speaker 04:
They were under a general file.

[00:26:13] Speaker 04:
This had been a report that was made in 2011.

[00:26:15] Speaker 01:
He was asking about the CCN report.

[00:26:20] Speaker 06:
Yeah.

[00:26:21] Speaker 06:
What about the CCN?

[00:26:23] Speaker 04:
The,

[00:26:25] Speaker 04:
The record doesn't indicate why the CCN report was not located.

[00:26:28] Speaker 04:
The CCN report was a Metropolitan Police Department report concerning something that a federal DEA 6 had been turned over on, listing all of the officers that were, listing the majority of the Metropolitan Police Department officers that were involved in that case.

[00:26:42] Speaker 01:
Can you tell me how it was found after trial?

[00:26:45] Speaker 04:
I'm sorry, Your Honor.

[00:26:46] Speaker 01:
Does the record show how it was found after trial?

[00:26:48] Speaker 04:
No, Your Honor.

[00:26:48] Speaker 01:
The government, when it finds this thing after trial and turned it over to the defense, as it should have, didn't offer any explanation as to why it didn't find it beforehand?

[00:26:58] Speaker 04:
Your Honor, in the record, as I have read it, there is a passing reference to the fact that there had been a DEA-6 that had been turned over and that, in addition, we were now providing a CCM.

[00:27:10] Speaker 04:
There's not an extensive discussion in the record of that.

[00:27:14] Speaker 04:
If I may briefly.

[00:27:17] Speaker 04:
make one argument on the materiality problem.

[00:27:20] Speaker 04:
This court, in order to grant a new trial, does have to find this material.

[00:27:26] Speaker 04:
Robinson has argued that it was material because he was not in possession of government reports that showed that he was doing post-seeking.

[00:27:33] Speaker 04:
This is why he claims this is different, in fact, from the evidence that he was able to introduce.

[00:27:38] Speaker 04:
The fact is, he was in possession of multiple government reports

[00:27:44] Speaker 04:
concerning both his discussion with St.

[00:27:48] Speaker 04:
Mary's County of prescription fraud investigations that were ongoing, which were the subject of the prior report, that it chose not to use.

[00:27:56] Speaker 04:
And it was in possession of a DEA 6 report, specifically on the 2013 pill seeker that was arrested, that it chose not to use.

[00:28:05] Speaker 04:
Perhaps because in that same DEA 6 report, the description of the treatment of that patient

[00:28:11] Speaker 04:
accorded with every other patient's treatment, which was that she was not interviewed by Dr. Robinson.

[00:28:19] Speaker 01:
But they argue that the CCN report described more fully the nature of Dr. Robinson's practice, how his process of identifying the problem

[00:28:39] Speaker 01:
with the one that was the individual that was reported.

[00:28:42] Speaker 01:
And this reporting was happening at the same time that the government was saying he doesn't turn over pill seekers at the same time as the individuals that are the subject of the indictment.

[00:28:57] Speaker 01:
So it shows that at the very same time that he's being accused by the government of not turning over pill seekers.

[00:29:08] Speaker 01:
He was doing so, and because good faith medical practice is the whole issue here, he was doing it as part of a protocol.

[00:29:21] Speaker 01:
in his practice.

[00:29:22] Speaker 01:
And so that's where it's with the timing and the nature of the description, which you don't have from DA6, that for me is the most difficult part of evaluating materiality in a case where the jury was very discerning and didn't convict on it.

[00:29:40] Speaker 04:
There are two responses.

[00:29:41] Speaker 04:
The first, as you noted to my colleague, the government's argument was that he did not report any of the individuals in the indictment.

[00:29:52] Speaker 04:
Their closing argument was not based on the fact that he never reported pill seekers.

[00:29:57] Speaker 04:
Second, I would note that the materiality that is presented by Robinson is that the CCN report would corroborate

[00:30:06] Speaker 04:
from a government source, the testimony of the eyewitnesses from his practice that testified about his robust practices in reporting pill seekers.

[00:30:18] Speaker 04:
And the DEA6 would do that, and yet they chose not to introduce it.

[00:30:23] Speaker 01:
This is a... It wouldn't do it, they say, with the amount of information focused on his practice, one focused on the person, this one focused on his practice.

[00:30:32] Speaker 01:
I mean, do you agree that the content of the two reports is different?

[00:30:37] Speaker 04:
I agree that it is different, Your Honor.

[00:30:39] Speaker 01:
And do you agree that the CCN report described, had a governmental description, a law enforcement description of how his practice identified the person that they were reporting, found the problem?

[00:30:55] Speaker 04:
It had a governmental recitation of what Robinson said regarding how he found the problem.

[00:31:01] Speaker 04:
But if I may point, Your Honor, to the DEA 6, this is at page 181 and 182 of the record, the DEA 6 specifically states that officers were informed by Robinson that he had a person there who was, quote, doctor shopping.

[00:31:14] Speaker 04:
And then paragraph 7.

[00:31:16] Speaker 04:
Reade was questioned about the MRI she presented to Robinson that made Robinson call the police and report her.

[00:31:24] Speaker 04:
It also knows that Reade stated West, which was her cohort, made and printed the MRI from her home.

[00:31:31] Speaker 04:
So there was information that the MRI was fraudulent.

[00:31:34] Speaker 04:
There was information that MRI was provided to Robinson.

[00:31:37] Speaker 04:
There was information that the reason Robinson called the police was because of the MRI.

[00:31:42] Speaker 04:
And there was a statement that Robinson reported her as a doctor shopper.

[00:31:46] Speaker 04:
Those all corroborate

[00:31:49] Speaker 04:
the eyewitness testimony of his employees.

[00:31:52] Speaker 04:
And this DDA-6, which was in the possession of the defense counsel, wasn't introduced to trial.

[00:31:58] Speaker 04:
They never attempted to.

[00:32:00] Speaker 04:
And so it undercuts their argument that CCN was so material as to change the outcome of a trial that it would lead to a reasonable probability when they had the ability to corroborate.

[00:32:13] Speaker 04:
If that was necessary, they had the ability to do it, and they didn't.

[00:32:16] Speaker 04:
And that simply undercuts their argument on materia.

[00:32:20] Speaker 07:
At this point, one fact that's bothering me a little bit.

[00:32:26] Speaker 07:
Now, you have a lot of good facts on the Gestalt, the standardized nature of the descriptions, some of the entries that look in the records that look a little bit dubious.

[00:32:40] Speaker 07:
But one, I think, pretty powerful fact for the defense is,

[00:32:47] Speaker 07:
this doctor secured a United States path to treat patients with a particular mechanism.

[00:32:55] Speaker 07:
It's a device he invented.

[00:32:57] Speaker 07:
He's got the whole protocol.

[00:32:59] Speaker 07:
It includes use of painkillers.

[00:33:03] Speaker 07:
And that seems pretty different from just a normal pill pusher.

[00:33:10] Speaker 07:
And I don't know, doesn't that make this

[00:33:15] Speaker 07:
closer case and then put more pressure on materiality?

[00:33:19] Speaker 04:
I don't believe so, Your Honor.

[00:33:23] Speaker 04:
I think that it's important to note that the patent is not a medical approval of Dr. Robinson's.

[00:33:31] Speaker 07:
But it suggests a legitimacy.

[00:33:35] Speaker 07:
and that there's substance to the practice.

[00:33:39] Speaker 04:
Well, a patent granted him exclusive rights in that process, but the patent itself doesn't speak to the medical legitimacy of that process.

[00:33:47] Speaker 01:
Well, maybe not objective medical legitimacy, but the cash in this case, I'm sorry to jump in, is good faith.

[00:33:53] Speaker 01:
good faith.

[00:33:53] Speaker 01:
And so he believed he had a system, the patent well documents that.

[00:33:58] Speaker 01:
Sorry to jump in.

[00:33:58] Speaker 04:
Well, this is a patent document that's in the record and it's in volume one.

[00:34:03] Speaker 04:
I don't know precisely the page.

[00:34:05] Speaker 04:
The oxycodone prescription part of the patent only calls for five days.

[00:34:10] Speaker 04:
And so it actually doesn't accord

[00:34:13] Speaker 04:
with the 60 pills of 30 milligrams of oxycodone that was being provided to these patients time and time again.

[00:34:21] Speaker 04:
And so I don't believe that simply having a patent, although it may lend an air of legitimacy, the jury heard about that.

[00:34:30] Speaker 04:
The jury heard all of these points, including that Dr. Robinson's practice had a bad patient style, including that Dr. Robinson had at times reported bad bill seekers.

[00:34:39] Speaker 04:
They took all of that evidence, weighed it, and said they still did not believe on 42 occasions that those individual lives that Dr. Robinson created, a provider-patient relationship sufficient to prescribe oxycodone on those occasions.

[00:34:55] Speaker 01:
Can you just ask one question and if you don't know, that's perfectly fine.

[00:34:59] Speaker 01:
But did the jury instruction in this case comport with Ruan from the Supreme Court's very strict?

[00:35:08] Speaker 01:
Yes, Your Honor.

[00:35:09] Speaker 04:
And this wasn't an issue that's been reached.

[00:35:11] Speaker 01:
Yeah, no, that's fine.

[00:35:11] Speaker 01:
If you didn't know, I was going to say it's OK.

[00:35:13] Speaker 01:
I was just curious.

[00:35:14] Speaker 04:
I will just direct Your Honor to the jury instructions themselves.

[00:35:19] Speaker 04:
And they appear with respect to the distribution counts

[00:35:23] Speaker 04:
at page 5,112 of the transcript and continue page 5,115.

[00:35:30] Speaker 04:
And there's also a standalone document of the jury instructions, which is at page 129.

[00:35:37] Speaker 04:
And the third element as was presented to the jury was, and I'm quoting here, defendant in writing prescription

[00:35:45] Speaker 04:
knowingly and intentionally distributed the drug outside of the usual course of medical practice, generally recognized and accepted in the United States, and not for a legitimate medical purpose.

[00:35:57] Speaker 04:
And so the jury instructions specifically tie the knowing and intentional mens rea to Dr. Robinson's practice of medicine and the legitimacy of the medical purposes.

[00:36:09] Speaker 04:
So we do believe that comports.

[00:36:10] Speaker 01:
Thank you.

[00:36:11] Speaker 01:
And you said they have a race advertisement.

[00:36:14] Speaker 04:
Unless the court has any further questions, we'd ask.

[00:36:17] Speaker 01:
Thank you.

[00:36:22] Speaker 01:
Mr. Metzitz, we'll give you two minutes for rebuttal, please.

[00:36:29] Speaker 05:
Thank you, your honor.

[00:36:30] Speaker 05:
I just have a few points to make on rebuttal.

[00:36:33] Speaker 05:
I'd like to start with where you ended with the government, which is Rulon.

[00:36:37] Speaker 05:
We're not arguing an instructional error here.

[00:36:39] Speaker 05:
We're arguing centrally the Brady issue is that there was important evidence that went to that central element, which everyone agrees was central, that was suppressed.

[00:36:48] Speaker 05:
And in fact, in Rulon itself, section four of the majority opinion notes that the jury instructions told the jury they needed to find knowing an intentional conduct.

[00:36:57] Speaker 05:
And so the question here is, well, did the suppressed evidence undercut the jury's ability to fully and fairly weigh that?

[00:37:05] Speaker 05:
I want to make a few other points.

[00:37:07] Speaker 01:
I want to let you make your points, but can I ask a question?

[00:37:09] Speaker 01:
Of course.

[00:37:10] Speaker 01:
It's your time.

[00:37:11] Speaker 01:
Yours too.

[00:37:12] Speaker 01:
So the government's argument is, all right, so the content of the DEA report and, in particular, CCN report differed.

[00:37:22] Speaker 01:
And you've argued about the value in your view.

[00:37:25] Speaker 01:
But what is your argument that the delta between that content?

[00:37:29] Speaker 01:
So as the DA report just said, Bill Pusher reported by Dr. Robinson.

[00:37:35] Speaker 01:
How do we determine that that delta, which is not stark, it's there but not stark, that itself is material?

[00:37:45] Speaker 05:
So Your Honor, I think that the delta is

[00:37:50] Speaker 05:
is significant because the CCN report, I think, is clearer about how Robinson detected and then reported and took his prescription back in the presence of officers.

[00:38:00] Speaker 01:
To the extent the DEA report kind of contains... Took his prescription back in the presence of officers?

[00:38:05] Speaker 05:
Yes.

[00:38:08] Speaker 01:
How would he have given the prescription in the first place?

[00:38:11] Speaker 05:
Well, because at that point, he did not realize that she was a pill seeker.

[00:38:14] Speaker 05:
But as soon as he was aware, he stopped treating her, he reported her, and he took his prescription back.

[00:38:20] Speaker 05:
I mean, to the extent that I think the court is struggling with some of these materiality issues, I think it's exactly as Judge Sentel said, all the way back to Stevens, which obviously my firm feels very strongly about.

[00:38:33] Speaker 05:
The court's instinct here has been that when there is a difficult question, when something about the evidence needed to be weighed, the jury is the best party to weigh that in the first instance.

[00:38:45] Speaker 05:
And that goes to a point that I wanted to make respectfully, which is that there was a lot of discussion, obviously, of government diligence or how they located or failed to locate issues.

[00:38:56] Speaker 05:
The law is quite clear that ultimately even an innocent Brady violation by the government remains a Brady violation.

[00:39:03] Speaker 05:
And it's also undisputed on the record that the defense asked for this multiple times before and throughout trial.

[00:39:12] Speaker 05:
And the key thing is that the jury never heard this evidence.

[00:39:17] Speaker 01:
I also want to move to the prior- I'll let you make the point, I promise.

[00:39:20] Speaker 01:
But I was just curious about this whole post-trial discovery thing anyhow.

[00:39:25] Speaker 01:
Why was the defense seeking discovery and how did it happen that

[00:39:28] Speaker 01:
Thought to ask now, again, after trial for this information.

[00:39:33] Speaker 05:
So I agree with my friend on the other side.

[00:39:35] Speaker 05:
I think that the government's letter disclosing the prior report is at A189, and it describes kind of the repeated requests.

[00:39:44] Speaker 05:
I think there were eight requests.

[00:39:46] Speaker 05:
There was a post-trial hearing in, I think, February 2018.

[00:39:50] Speaker 05:
And the defense, again, kind of propounded its request.

[00:39:56] Speaker 05:
because it knew these records had to exist.

[00:39:59] Speaker 05:
It's simply unreasonable that there are no records of these reports.

[00:40:05] Speaker 05:
We focus a lot on the CCN report.

[00:40:08] Speaker 05:
I do want to emphasize that, in our view, the prior reports are very significant.

[00:40:12] Speaker 05:
And this is another way, Your Honor, that it ties specifically into the indicted patients, is if you look at the prior reports, the prior reports are all about pill seekers from southern Maryland.

[00:40:23] Speaker 05:
Specifically, pill seekers from southern Maryland who were coming in and obtaining pills under false pretenses.

[00:40:31] Speaker 05:
And all the indictment patients were from southern Maryland as well.

[00:40:34] Speaker 05:
So it creates, again, this kind of one-to-one match-up where the jury could really have strongly inferred that had Robinson been aware that the patients charged in the indictment were pill seekers, he very likely would have reported them.

[00:40:48] Speaker 05:
And therefore, he very likely was not aware.

[00:40:54] Speaker 05:
I want to close by emphasizing that the case law is extremely clear that Brady error is not a sufficiency of the evidence question.

[00:41:04] Speaker 05:
It's would the jury have in essence struggled with this evidence?

[00:41:09] Speaker 05:
Would it have weighed on their consideration?

[00:41:11] Speaker 05:
I think it clearly would have.

[00:41:13] Speaker 05:
I think it clearly would have weakened the government's case and therefore is material.

[00:41:18] Speaker 05:
There's no harmless violation of Brady.

[00:41:21] Speaker 05:
Really, you can't find a rape violation but then hold it harmless.

[00:41:25] Speaker 05:
What you'd instead be doing is saying, well, there was no violation because the evidence was not material.

[00:41:31] Speaker 05:
And respectfully, we think that for all the reasons we've raised in the briefs and we've discussed here today, we think the clear conclusion is that the suppressed evidence was material.

[00:41:40] Speaker 05:
And we respectfully request that the court vacate Dr. Robinson's convictions of court.

[00:41:46] Speaker 01:
Thank you very much.

[00:41:47] Speaker 01:
The case is submitted.

[00:41:48] Speaker 05:
Thank you.