Oral argument — United States v. Eskender Getachew

case number 24 34 32 United States of America vs. Eskender Getachew oral argument not to exceed 15 minutes per side. Mr. Chadd for the appellant Good morning, your honor. Mr. Chadd, how are you? Good. May it please the court? I'm here this morning representing. Dr. Eskender Getachew who is here with us this morning And I'd like to reserve three minutes for rebuttal if I may I'd like to try to get to two arguments if I can this morning out of the brief that I filed the first argument I want to argue about is the Whether the court should have given a deliberate ignorance instruction in this case And if I have time I'd like to get to the court's Taking of the jury verdict in the absence of the defendant So let's start with the jury instruction issue The defense in this case had nothing to do with deliberate ignorance The the defense in this case was that dr. Getachew was acting within the scope of his authority in prescribing the Case to the end of the case that was his defense. He never claimed that he was Ignoring the red flags the quote-unquote red flags. He never claimed that he just didn't know He said this is good medicine. Not only did he say that through his witnesses, but he said that through his expert witness He also said it both in opening arguments and in closing arguments that that was his defense What what's the standard for view to this did the lawyer below raise this point? And so is it plain air so so the the standard of review? He did raise an objection to this instruction right, but he didn't raise Yes, he didn't raise this particular Argument within his objection we we agree with that Maybe that's the way to think about it Well, we resist the plain air review, but we think we still can win under plain air review so the reason that we don't think it's plain air review is because the whole idea of plain air review is that you give the district court an opportunity to fix the issue and In this case he objected to the very instruction that we're talking about on appeal So he he notified the district court that this instruction shouldn't be given That's the essence of the argument that we're making on appeal is that this instruction shouldn't have been given Therefore because the district court had the opportunity to pass on whether this instruction should have been given at all It's not a Ruan case, I mean I get it that it would have been nice to Think more more about it, but aren't they allowed to look at it through the lens of the actual argument made? so I don't think I the District Court has a an independent duty to get the instructions, right? regardless of What the parties asked for or don't ask for an air review? Right in and that's why I say that even if we get to plain air review I think we still win and and and we win because you know in Stanton this court Specifically said that in order to get to a deliberate ignorance instruction the defendant has to claim Deliberate ignorance. It's not just the government trying to make this argument It's that the government has to claim that it's that that he was deliberately ignorant and in what it does is it presupposes? so the difference between These two claims is you know the if you get to deliberate ignorance you already are at the point where the prescriptions were Unauthorized you already have to be beyond that point because what you have to do is say sure they were unauthorized But I you know I just didn't realize that they were unauthorized But they were right and that and so if you never get to that defense Which in this case didn't happen then then the the point of the inflection is were these? Prescriptions authorized and if that's the point of inflection you can't get to deliberate ignorance Just as a matter of law and that's why this court has said over and over and over again that this instruction should be sparingly given and what it seems like is happening is in every case where we have a pharmacist a physician or anyone else that's charged under 841 this instruction is given as a matter of course and Sometimes that's because the defense is I didn't know but that's not what occurred in this case So now if it if it's a a error in the instruction How do we get to plain error? How is this you know such? specific error that it You know that it actually Makes a difference in the case Substantial rights it affects substantial rights so obviously it affects substantial rights because it gave the jury a basis to convict him on Something that never was what about the reality there was a fair bit of evidence I mean there was some damning evidence here. Well. There's there's a difference between there was evidence and there was evidence of deliberate ignorance right So then it because it gave the jury so we had these conflict these these dueling Experts in this case we had the government expert that said all this is horrible We have the defense expert that says all of this is good medicine And so this particular instruction is critical and important because it gave the jury a third option They didn't just have to decide between Was this authorized or was this unauthorized what they could do then instead they say well it could have been Authorized or unauthorized, but he deliberately ignored all these red flags and therefore we're still going to find him guilty So had this instruction not been part of the equation in front of the jury They would have only had to decide was this authorized or not and that was taken away from him by the giving of this Instructed I don't know that's a plain-air case I thought there was some Supreme Court case maybe called Griffin that said if you weren't sure what the jury did And there's one much more plausible theory. There's one less plausible theory. You should assume. They did the more plausible theory Yeah, I'm not I don't I don't know that case off the top of my head I don't think it was cited to but why wouldn't that be a reasonable way to think about this well because ideas I know what I understand what you're saying like it. I'm getting the point but Your idea was that's instruction should never been in front of them right, but if the other instructions You know they practice properly sufficient evidence. It's hard to me to say You know an injustice has been committed even though you might be right that the actual Subjective view of the jury was drilling down on this deliberate indifference instruction So I'm gonna refer the court to the the instructions that were given to the jury and it's starting on its page ID 1720 and so you know the the the instruction it says this element the defendants knowledge Can be inferred if he deliberately ignored the obvious and then goes on to give the instruction So it actually gives so it gives the jury Okay, I can we can find him guilty on this alternative basis And that's why it's so it's so important very puzzling because the best argument you're making is there shouldn't have been a deliberate Instruction because there's no evidence to support it So it's very funny that a rational jury is doing the very thing is Convicting on the one ground for which there's no evidence But if you look at the at the government's closing argument And I cite to I think four to five instances in my initial brief where during their closing argument they rely almost exclusively on this as a basis for conviction they point out three four or five times why You can rely on deliberate ignorance to convict this person, and that's why it's a problem in this case I Have three minutes and 48 seconds left I want to briefly switch over to the other argument which I think is just as important if not more so So we you know you know the facts the defendant is He's in a jury trial. They the jury comes back and says we have a verdict and instead of Having the defendant there The the judge just goes on the record and says well I guess he thought it wasn't important enough to be here takes the jury's verdict in dr. Get a choose absence and Then says thank you very much go on your way and And then makes another derogatory comment to the jury About dr. Get a true not being there and and excuses the jury The jury verdict because they'd already said they had a verdict they did say they had a verdict so the does rule 43 which has very specific language It's it's must the language is the defendant must be present not should be present not can be present must be present If that is a must language, how can it be? Harmless in other words, so Kind of following along your line of thought on this in any case where the jury says it has a verdict And we know that they can't be influenced by anybody's absence of presence Do we just never bring the defendant back to court one side note that? This could be just a foolish question so don't be afraid to say it is But you know I often think of these ineffective assistance claims as being better handled in 2255 is that Just not right because of delay or am I missing something. This is a special rule about You know post verdict decisions, or so are you talking about the issue number four the or the jury verdict issue? Well, I'm making the point that this seemed like ineffective assistance. Oh absolutely Yes, I agree with I do agree with you there. Oh, are you agreeing? Well, maybe you just agreed with me that that should be handled in a 2255 and what you're saying is this was just non waivable and So it has nothing to do with whether it was ineffective so so my specific Argument on appeal is that the district court should have done more I'm setting aside the fact that counsel was clearly in my opinion ineffective for failing to at least make a record Right why should the district court do more if because rule 40 no there's lawyers there. Yep, and I Would have thought it was quite I wouldn't have said what the judge said, but I I wouldn't have thought It was strange to assume that I can go forward with the person's lawyer there, and they're not saying please give me five more minutes I'll track him down so the reason that it's the judges air as well is Kind of twofold number one rule 43 is a rule for the judge in the court not the litigants It's the judge must ensure the presence That's what that's the plain language of the rule so that so that the affirmative duty is on the court second the case law that We have which is the Crosby case in the riddle case all talk about the court performing an inquiry To ensure that the defendants absence is voluntary Which the court did not do in this case at least anywhere on the record that we have and so again That's the courts problem Not the not the defense counsel's problem defense counsel should have made a record and said judge You can't do this without my client being here, but that's for another day in a 2255 But it doesn't excuse the district courts failure Thank you From the government Good morning May it please the court Sophia Vickery for the United States I thought it would just go in the same order as defense counsel unless the court had a different preference The jury instruction issue should be determined on plain error The defendant didn't alert the district court about the analysis that he's advancing today Which is specifically about the facts in his case and not a generic Ruan claim That I don't agree with his characterization that he did not put knowledge at issue before the jury I think he clearly did so a few times For instance in his opening and this is cited in our brief at page 24 He says the question is to get it to prescribe these medications with the criminal intent required Did he know what he was doing was wrong and in closing he returns the same theme He says we get it who wrote these prescriptions that he know what he was doing was wrong Maybe he also challenged whether they were authorized on an objective criteria But he was clearly additionally putting criminal intent an issue and the facts of the case supported a deliberate ignorance instruction Because there were these red flags and the jury could infer that he deliberately ignored the truth of those red flags the obvious implication of what it means for instance when a patient's Drug screening shows that they are not taking the medication that you have been consistently prescribing And In addition any error would be harmless Which I think you all were discussing Because there was also evidence of actual knowledge in the case and the jury would have been entitled to convict on that theory as well I'll turn to the the verdict issue next unless unless there are questions on that So the verdict issue is on plain error review As I think the defendant has conceded and we there are two independent reasons why reversal is not warranted I'm just going to start with the second since that's what was being discussed Which is that? Dr. Getachew has not shown that his absence affected his substantial rights. The outcome would have been no different had he been there This was a split verdict Reflecting careful consideration of the trial evidence the jury filled out the verdict in advance The verdict form is in the record defense counsel looked at the verdict form after it was delivered and the trial court Individually pulled the jurors. There's nothing unusual happening here that would suggest That is unusual your honor For obtaining his presence falls on the court I'm not sure. I agree with your last point when we're talking about a non custodial defendant Who's out on bail his conditions of bail obligated him to be at his legal proceedings. He obviously knew that the jury was deliberating There's simply not enough information in the record to know whether his absence was because of bad advice from counsel Because he chose not to be there for some other reason Right, there's nothing on the record. I was in the district court for a long time as a judge and I don't know if it had any impact on what happened or not, but I certainly agree with mr Shad's point that it was on the trial judge to try attempt to procure the presence before proceeding I think it would have been better if there had been an inquiry I don't think on this record It was plain error for the district court to infer that his absence was voluntary and you have a couple Supreme Court cases Taylor talks about that. You don't have to give the defendant an explicit like warning telling them you have the right to be here And then Gagnon is the other case that says in these circumstances when it's a non custodial defendant Who is initially present and this is also kind of reflect in the text of the rule and then voluntarily absent you can you can infer that it was Voluntary whether there is something going on with the advice of counsel that there's I don't think the record is clear one way or the other If that is at play or not And if if it is and there's some kind of claim that could be made on a collateral proceeding we could certainly evaluate it at that time I Don't think I had any other Points to add there unless the court had further questions. I don't think we do so. Thank you very much. Thank you Shad you've got your rebuttal Thank you your honors Okay as to the first issue. Let me just read from the closing arguments This case is not about whether dr. Get a chew could have prescribed lowered dosages It's not about whether he could have prescribed suboxone and said instead of subutex It's not about whether he is the government suggests ignored. What was in the urine lab screens. It's about Whether or not he had a legitimate purpose not the only legitimate purpose But whether he had a legitimate purpose for prescribing the medications he prescribed that was the defense. That's what was told to the Jury in the closing arguments, but I mean she pointed out that knowledge was put in play He said well, but you can you can change legal theories between opening and closing right Wait, you're saying that the mistake in the instruction was not paying attention to the closing argument No, no, no, but what I'm saying is that the we're look the Stanton. Let me read directly from Stanton because it's the case that the most helpful thing will be to say she's either right or wrong that Prior counsel put knowledge in play he did not but I thought she just quoted some sections She did say that he that he did that in opening, but that's not what the defense was That's not what the defense was and I read to you verbatim what the defense was in closing arguments Turning to the second issue though so the rule the rights under rule 43 and the Constitution are not contingent upon the custodial status of the defendant And it's the reason that it's must it's the reason that they wrote the rule in the way that they did and so the fact that they that the District Court could be off the hook because this defendant happened to be out on bond as Opposed to another defendant that was in custody can't enter into the equation What can't enter the equation is like in Crosby and in riddle where the court does an inquiry and says why? Isn't the defendant here and in figures out why the defendant isn't here and in riddle specific It'd be plain air if the verdict had already been reached I mean, I'm not disagreeing with the fact that the judge should have done it differently, but Lawyer doesn't object So we're in plain air review, and I can't conceive of a way in which he's not being there affected any so so it is plain air if it affects the if it affects the integrity of the proceedings and And and I can think The defendant had never returned to the courtroom they've completed the trial the jury is already deliberated would that mean that The based upon the unknown actions of the defendant that The trial could not be concluded and The the court couldn't have proceeded because of that word must in the rule even if there was no known or apparent violation of The defendant's substantial rights no I would have just gone up in smoke Actually the the the application notes in rule 43 Specifically account for that as does the case law and and that's the whole purpose is that you know the case the the rule does Say if a defendant voluntary Voluntarily absence himself from the proceedings that that can constitute a waiver of this rule 43, right? but it's in the context of Like in Crosby what the defendant did was just as you're suggesting They they they started the trial the defendant left for the day then packed up all his belongings took off And they stopped the trial for two days to try to figure out where he was Got the marshals after him and then went on with the trial after that we're not making that argument you know the the converse of that judge clay is let's say that he was on his way to the courthouse and got into a Car accident, and he's unconscious. You know was that a basis to say well. He's absent. Let's go on with the trial without him Let's go on with the verdict without him, and let me just finally say the taking Yeah, you would think the lawyer would have said something either way, but but this is important So the defendant being present at the time the jury renders its verdict is important and It's in it in the reason judge Gibbons says what where are the other cases you know there? There's not really a lot of cases that this happens because it's so unusual and in just because the judge was mad wanted to get It over with is not a basis to not wait 15 minutes because he was there 15 minutes later He was on his way had the court inquired. He would have known he was on his way We wouldn't be here talking about this Thank you very much. Mr.. Shad as always your terrific lawyer. Thank you. Thank you. Thank you I miss a victory and thanks to both of you for your helpful briefs and Places submitted in the clerk may adjourn court