[00:00:04] Speaker 00:
Good morning, your honors.

[00:00:05] Speaker 00:
May it please the court, Anthony Brown for the defendant and appellant, Sandy Nguyen.

[00:00:10] Speaker 00:
And with me at council table is my colleague, Kearsey Luther.

[00:00:16] Speaker 00:
I'm happy to take whatever suggestions the court has for argument, because I know there are a lot of issues in this case.

[00:00:22] Speaker 00:
But where I'd like to begin is with the Speedy Trial Act issue.

[00:00:26] Speaker 02:
Can you adjust the microphone up so that we can hear you a little better?

[00:00:29] Speaker 00:
I'm sorry.

[00:00:30] Speaker 02:
Thank you.

[00:00:31] Speaker 00:
Is that better?

[00:00:31] Speaker 00:
Yes.

[00:00:33] Speaker 00:
I'd like to begin with the Speedy Trial Act issue.

[00:00:37] Speaker 00:
Judge Wright at the hearing on the Speedy Trial Act motion offered three reasons for denying the motion.

[00:00:44] Speaker 00:
All three of those reasons were demonstrably inaccurate and incorrect.

[00:00:49] Speaker 00:
The first reason he offered was that everybody was on board with that.

[00:00:53] Speaker 00:
That's on page 110 of the record.

[00:00:56] Speaker 00:
The fact of the matter was that my client had objected to the continuance.

[00:01:01] Speaker 00:
And that was clearly stated in the government's ex-party application.

[00:01:04] Speaker 01:
But even if your client objected, the Harvey, excuse me, the Henry case would come into play, wouldn't it?

[00:01:12] Speaker 00:
No, Your Honor.

[00:01:13] Speaker 00:
One of the reasons why Henry allowed for the continuance to occur was that Henry's counsel had made statements in the request for a continuance saying that he needed additional time.

[00:01:25] Speaker 00:
But trial counsel for my client didn't say that at all.

[00:01:29] Speaker 03:
Well, the government says the court's order incorporated by reference the government's application so that all of the arguments in there were incorporated.

[00:01:42] Speaker 03:
What's your response to that?

[00:01:44] Speaker 00:
I have two responses, and it happens in two layers.

[00:01:46] Speaker 00:
First, let's take a look at what Judge Wright actually said during the hearing.

[00:01:50] Speaker 00:
He said everybody was on board with that.

[00:01:53] Speaker 00:
And so Judge Wright was telling us he was under the impression that my client had actually stipulated to the continuance.

[00:01:59] Speaker 00:
But again, that was not true.

[00:02:02] Speaker 03:
But the application clearly stated that your client was objecting.

[00:02:10] Speaker 00:
Well, the application clearly stated that.

[00:02:12] Speaker 00:
That's correct.

[00:02:13] Speaker 03:
And so the government says, well, the court incorporated that by reference.

[00:02:17] Speaker 00:
Well, what I'm saying is the evidence in the record, Judge Wright's own words about what happened

[00:02:24] Speaker 00:
directly refute that because he said, he didn't even say, I thought everyone was on board with that.

[00:02:30] Speaker 00:
He was a little angry that the motion had been brought.

[00:02:32] Speaker 00:
He said, everybody was on board with that.

[00:02:35] Speaker 00:
That tells me that Judge Wright did not realize that my client had objected to it.

[00:02:40] Speaker 00:
He missed it.

[00:02:41] Speaker 00:
He missed it.

[00:02:42] Speaker 02:
He missed it.

[00:02:43] Speaker 02:
And then when did you bring that to his attention?

[00:02:45] Speaker 00:
In the motion to dismiss when we were supposed to.

[00:02:47] Speaker 02:
Not before that to say, well, Your Honor, everybody but my client

[00:02:54] Speaker 02:
agreed to this continuance.

[00:02:55] Speaker 00:
Well, if you read the record, what happened was as they were arguing, I mean, even before the argument began, Judge Wright introduced the argument by saying, I'm going to call the motion.

[00:03:06] Speaker 00:
And he said, you know, I'm a little bit, I can't remember what his exact words were, but he expressed some sort of frustration and even a little annoyance about the fact that the motion had been filed at all.

[00:03:17] Speaker 00:
He said, I don't understand this.

[00:03:18] Speaker 00:
Everybody was on board with that.

[00:03:20] Speaker 03:
I don't see any language about everybody is on board with this.

[00:03:24] Speaker 03:
Can you tell me what exact language you're pointing to?

[00:03:27] Speaker 00:
1ER110.

[00:03:52] Speaker 03:
Okay, and what is the language?

[00:04:00] Speaker 00:
If he calls the motion, 207, this is defendant's motion to eliminate, a motion to dismiss under the Speedy Trial Act for various violations.

[00:04:08] Speaker 00:
You know, I took a look at the last ex-party application that contains a trial.

[00:04:13] Speaker 00:
It took us all the way up to November 15th.

[00:04:15] Speaker 00:
That's the continuance that he's talking about and that was objected to.

[00:04:19] Speaker 00:
And everybody was on board with that.

[00:04:21] Speaker 00:
So it's almost upsetting to have to deal with a motion to dismiss for violation of the Speedy Trial Act when there's been a stipulation after stipulation to continue.

[00:04:30] Speaker 00:
Judge Wright's clearly indicating that he thought my client was on board with the motion.

[00:04:35] Speaker 01:
So this is happening when he's hearing your client's motion to dismiss the indictment?

[00:04:40] Speaker 01:
That's correct.

[00:04:41] Speaker 01:
So maybe he just forgot what happened months ago.

[00:04:45] Speaker 01:
Your Honor, he said.

[00:04:48] Speaker 01:
First of all, I don't appreciate that tone, Mr. Brown.

[00:04:52] Speaker 00:
Your Honor, I'm sorry.

[00:04:53] Speaker 00:
I think, let me point out what I'm talking about, and I didn't mean any disrespect, Your Honor.

[00:04:58] Speaker 00:
What I'm pointing out is he said, I took a look at the last ex-party application.

[00:05:02] Speaker 00:
He says, I reviewed the record.

[00:05:04] Speaker 00:
This is a motions hearing before a criminal trial.

[00:05:06] Speaker 00:
We have to assume that Judge Wright was prepared for this.

[00:05:10] Speaker 00:
And if he took a look at the application and he's still under the impression that my client had stipulated to the continuance, he was wrong.

[00:05:19] Speaker 00:
He was just wrong.

[00:05:20] Speaker 03:
So I guess my question was, did he say anything at the time that the application was before him?

[00:05:32] Speaker 03:
Or is this just after the fact, Judge Wright, the district court?

[00:05:36] Speaker 00:
This was the only hearing on the motion.

[00:05:39] Speaker 00:
I'm sorry, this was the only hearing.

[00:05:41] Speaker 00:
There was one hearing on the motion to dismiss.

[00:05:44] Speaker 00:
And this is the only thing that he said in these three pages.

[00:05:47] Speaker 03:
Well, at the time of the application.

[00:05:49] Speaker 00:
Right.

[00:05:50] Speaker 00:
So let's get to the time of the application.

[00:05:52] Speaker 00:
It was actually, it's worth noting it wasn't a motion.

[00:05:56] Speaker 00:
It was an ex-party application, which is an emergency procedure.

[00:05:59] Speaker 00:
Okay.

[00:06:00] Speaker 00:
It's also worth noting that Judge Wright has a standing order that says any opponent of an ex-party application gets 24 hours to respond.

[00:06:09] Speaker 00:
But Ms.

[00:06:10] Speaker 00:
Nguyen didn't get 24 hours to respond, because Judge Wright entered the order granting the ex-party application 26 minutes after it was filed.

[00:06:19] Speaker 00:
On the first page of the ex-party application, it says Sandy Nguyen is the third defendant, and she objects to this.

[00:06:27] Speaker 00:
26 minutes later, that order was entered.

[00:06:30] Speaker 00:
So we never got a chance to respond to it.

[00:06:33] Speaker 00:
The first time that we had a chance to respond was on the motion to dismiss.

[00:06:37] Speaker 00:
And that's the first time that Judge Wright mentioned the fact that he thought everybody was on board.

[00:06:44] Speaker 00:
So that's when it became apparent that he was mistaken about what happened.

[00:06:47] Speaker 01:
And I'm just wondering if there's any sort of a mechanism to bring that to the judge's attention at the 27th minute.

[00:06:55] Speaker 01:
Do you understand what I'm saying?

[00:06:57] Speaker 01:
Why not, as defense counsel, call this to the judge's attention and say, my client objected to this.

[00:07:08] Speaker 01:
We were entitled to 24 hours to respond.

[00:07:12] Speaker 01:
You acted without giving me that opportunity.

[00:07:16] Speaker 01:
Why not do that?

[00:07:17] Speaker 00:
Well, I think the better question is to ask, and I'll answer that question, okay?

[00:07:22] Speaker 00:
The mechanism for challenging a Speedy Trial Act violation is a motion to dismiss.

[00:07:27] Speaker 00:
That's what my client did.

[00:07:29] Speaker 00:
But I want to object to the premise of, with respect, Your Honor, to the premise of the question.

[00:07:36] Speaker 00:
The Speedy Trial Act is, I mean,

[00:07:40] Speaker 00:
As this court has said in Henry, with the Speedy Trial Act, there is a duty to ensure that the defendant gets to trial within 70 days.

[00:07:51] Speaker 00:
It doesn't belong just to the defendant.

[00:07:53] Speaker 00:
It belongs also to the district court and to the government council.

[00:07:58] Speaker 00:
And I want the court, the reason I mentioned that this was an ex-party application is to highlight the fact that government counsel put this on an emergency schedule when government counsel didn't have to do that.

[00:08:08] Speaker 00:
They could have filed a motion and then later filed the next party application to shorten time.

[00:08:13] Speaker 00:
They could have done something to help respond.

[00:08:16] Speaker 00:
Government counsel could have filed something with the court to say Ms.

[00:08:20] Speaker 00:
William never had a chance to respond to that.

[00:08:22] Speaker 00:
So I understand what the court is saying, but

[00:08:25] Speaker 00:
The burden to ensure that a defendant gets to trial within the 70 days under the Speedy Trial Act is shared by the defendant, the counsel for the government, and the court.

[00:08:35] Speaker 03:
So under 316186, as I understand it, an objecting defendant is carried along with the other defendants unless the objecting defendant asks for a severance or unless it's not reasonable.

[00:08:53] Speaker 03:
So the government says, well, the reasonableness, again, was as to your client was contained in the government's application.

[00:09:05] Speaker 03:
What's wrong with that argument?

[00:09:07] Speaker 00:
There are three things wrong with that.

[00:09:08] Speaker 00:
First, the order itself never mentions subsection H6.

[00:09:12] Speaker 00:
As the court just explained, the only way for my client

[00:09:17] Speaker 00:
for the delay to count against my client is if the court makes findings under H6.

[00:09:22] Speaker 00:
There are none.

[00:09:23] Speaker 03:
So the government says application incorporated by reference, and that has all the H6 findings.

[00:09:31] Speaker 00:
This is a strange, it doesn't, and it's a strange order that incorporates by reference all the arguments in the application, but then limits all the findings to H7 findings.

[00:09:42] Speaker 00:
Those are the only findings that are in the order.

[00:09:44] Speaker 00:
And now, H7 is appropriate for the other two defendants who are requesting an ends of justice continuance.

[00:09:51] Speaker 00:
Those findings are relevant to that.

[00:09:53] Speaker 00:
What they are not relevant to is dragging my client along for 378 days.

[00:09:59] Speaker 00:
There are no findings with respect to H6 in the order.

[00:10:02] Speaker 00:
It doesn't mention H6 in the order.

[00:10:05] Speaker 00:
And that's why I think that Judge Wright didn't catch this.

[00:10:08] Speaker 00:
I think he didn't realize it and he thought it was just a stipulation among all of the defendants.

[00:10:14] Speaker 00:
Here's the other reason that that doesn't sort of save the day for the government or for the judge.

[00:10:22] Speaker 00:
This is a 378-day continuance over a year.

[00:10:27] Speaker 00:
Under Supreme Court authority and Ninth Circuit authority, 378 days is presumptively prejudicial.

[00:10:34] Speaker 00:
When a judge receives an ex-party emergency application which signals to the judge that somebody wasn't agreeing to this in a stipulation,

[00:10:43] Speaker 00:
and the continuance is for 378 days and one of the defendants is being dragged along with that against her will.

[00:10:50] Speaker 00:
The judge needs to take a careful look and the case law is very clear about this.

[00:10:54] Speaker 00:
The judge needs to make an independent inquiry to determine whether or not

[00:10:59] Speaker 00:
a continuance is needed at all, and then also to determine whether the length of the continuance is warranted.

[00:11:06] Speaker 00:
Judge Wright didn't do that.

[00:11:08] Speaker 00:
And if you look, and this is the last part of the answer, Your Honor, if you look at the actual explanation for why the 378-day continuance was warranted, it just doesn't satisfy the requirements under the law.

[00:11:23] Speaker 01:
Can I ask you to pivot to the allocution issue?

[00:11:30] Speaker 01:
And you're arguing that your client was, I don't want to misstate it.

[00:11:38] Speaker 01:
Your argument is that Judge Wright exercised some sort of a bias against your client because she didn't wish to allocute

[00:11:51] Speaker 00:
I think, yeah, I would say it was something like an allocution tax that was exercised against the client.

[00:11:59] Speaker 00:
Judge Kaczynski a long time ago recognized that defendants who want to seek an appeal but also want to come before the court and get a fair hearing at a sentencing face a very difficult situation.

[00:12:11] Speaker 00:
I'm sure, as you know, having done many sentencing, judges want to hear that a defendant is repentant.

[00:12:20] Speaker 00:
That's a factor that's relevant to deterrence, and they want to know that the defendant accepts responsibility.

[00:12:27] Speaker 01:
And you're right, Mr. Brown, because when I read your arguments and I looked at the transcript,

[00:12:33] Speaker 01:
What I took away from that is that Judge Wright wanted to know more about your client and looking at her through the lens of the Section 3553A factors.

[00:12:43] Speaker 01:
So for example, she has two children, I think.

[00:12:46] Speaker 01:
Is that right?

[00:12:47] Speaker 01:
That's correct.

[00:12:48] Speaker 01:
Maybe he wants to hear how important she is to the upbringing of those children and how she's sharing parenting responsibilities with her husband.

[00:12:58] Speaker 01:
And she didn't do any of that.

[00:13:00] Speaker 01:
she didn't cooperate with the pre-sentence investigation report writer.

[00:13:07] Speaker 01:
You could correct me in a moment.

[00:13:09] Speaker 01:
As far as I can tell, she wasn't cooperating with the PSR process, and then she didn't want to tell Judge Wright

[00:13:18] Speaker 01:
something short of accepting responsibility which I agree with you she doesn't have to stand up there and accept responsibility for something she maintains she didn't do and she wants to preserve her appeal rights but when the sentencing judge is trying to determine what should I do with this person

[00:13:35] Speaker 01:
I feel like Judge Wright wanted to know more about her.

[00:13:38] Speaker 01:
So why don't you address that to me?

[00:13:42] Speaker 01:
Why not just tell her, go tell the judge serving 180 months in a federal prison is going to be devastating to your family?

[00:13:51] Speaker 00:
Well, I think she did, and I think she made those arguments.

[00:13:56] Speaker 00:
If you read the entire sentencing transcript, you'll see that those arguments were made.

[00:14:00] Speaker 00:
Also, take a look at the PSR because it has all the information that you just described about her family, her upbringing, her past, about the two children that she has, about the fact that her husband is going to have to take care of them while she's in prison.

[00:14:13] Speaker 00:
All of those things were in the PSR.

[00:14:15] Speaker 02:
But there's nothing wrong with a district judge saying, you know, I think his comments were along the lines of, well, I don't want to sentence somebody merely on the basis of the papers, the PSR.

[00:14:26] Speaker 02:
So it would be helpful to hear from her.

[00:14:29] Speaker 02:
She has a right to say, well, no, I'm not going to say anything on the advice of counsel.

[00:14:33] Speaker 02:
Correct me if I'm wrong.

[00:14:33] Speaker 02:
You weren't the counsel.

[00:14:34] Speaker 00:
I was not.

[00:14:35] Speaker 02:
I was representing her at that time.

[00:14:38] Speaker 02:
So whatever

[00:14:39] Speaker 02:
The advice was whatever evaluation she made as to the risks and benefits.

[00:14:44] Speaker 02:
The argument here on appeal is that somehow she was penalized for it.

[00:14:47] Speaker 02:
I share Judge Liberty's views.

[00:14:51] Speaker 02:
There's nothing wrong with a district judge saying it would be helpful if I hear from the defendant, and it's her right to say no to that.

[00:14:58] Speaker 02:
But in terms of whether she was penalized for the sentence, correct me if I'm wrong, I recall the sentence started with the district judge giving an indicated sentence.

[00:15:10] Speaker 02:
That's the same sentence that she eventually got, right?

[00:15:13] Speaker 02:
So I don't know how you can draw an inference of some sort of penalty imposed for the failure to allocute.

[00:15:19] Speaker 00:
All right, so I'm going to start from the end and then get back to the beginning.

[00:15:24] Speaker 00:
The inference is drawn from the fact that, if you recall, Judge Wright started out suggesting he was going to give a 180-month sentence, but it was also pretty clear from the record that he was using the wrong PSR.

[00:15:35] Speaker 00:
He had not looked at the revised PSR or the revised recommendation from probation.

[00:15:40] Speaker 00:
So I think that he was locked into an earlier set of facts that wasn't

[00:15:45] Speaker 00:
the prevailing set of facts were during the time of sentencing.

[00:15:50] Speaker 00:
And then the second thing is you got to read the transcript carefully and read also the government's cue off of what Judge Wright was saying.

[00:15:57] Speaker 00:
Judge Wright wasn't just saying, I want to hear about your family.

[00:16:00] Speaker 00:
I want to hear about your whole life.

[00:16:01] Speaker 00:
He was saying, I want to hear about what took place during this crime.

[00:16:05] Speaker 00:
The government heard that very clearly because the government said, sure, why doesn't she stand up and say, you know, I got

[00:16:12] Speaker 00:
I got in over my head.

[00:16:13] Speaker 00:
I didn't realize what was going on.

[00:16:15] Speaker 00:
And by the time I realized what was happening, it was too late.

[00:16:18] Speaker 00:
The government offered a script for her to satisfy Judge Wright.

[00:16:22] Speaker 00:
She didn't want to use that script because she thought it was going to hurt her chances on the appeal.

[00:16:27] Speaker 00:
And Judge Wright said, fine, if you don't want to tell me, that's what I want to know.

[00:16:32] Speaker 00:
And if you don't want to tell me that, then you're going to get the 180-month sentence that I started out with as opposed to the 130-month sentence that probation recommended and the 120-month sentence that the government recommended.

[00:16:43] Speaker 00:
So I still want to reserve some time.

[00:16:45] Speaker 00:
Are there any other questions that I need to address right now?

[00:16:49] Speaker 03:
Apparently not.

[00:16:56] Speaker 04:
Good morning, Your Honors.

[00:16:57] Speaker 04:
Ali Mogaddis on behalf of the United States may please the court.

[00:17:01] Speaker 04:
Your Honors, I would like to start where counsel left off with respect to Ms.

[00:17:05] Speaker 04:
Nguyen's ultimate sentence in this case.

[00:17:07] Speaker 04:
As Judge Nguyen just alluded to, the court did announce its tentative at the start of the hearing.

[00:17:13] Speaker 04:
Despite what Mr. Brown claims was

[00:17:15] Speaker 04:
mistaken belief based on the old PSR, he actually talked about the revised PSR first.

[00:17:21] Speaker 04:
He clearly articulated the guidelines calculation and the range on the record, and thereafter, he announced his tentative would be 180 months.

[00:17:30] Speaker 04:
And thereafter, for the rest of the voluminous hearing that occurred, actually needed to be split into two parts.

[00:17:36] Speaker 04:
I was trial counsel and I was there.

[00:17:39] Speaker 04:
we talked about the defendant.

[00:17:41] Speaker 04:
And Mr. Quarry, trial counsel, got up and he tried to paint the defendant as an innocent bystander.

[00:17:46] Speaker 04:
He literally said she was an innocent bystander.

[00:17:49] Speaker 04:
He said at most her culpability in the case was for $800,000, not the $11 million that was billed and received during her tenure as the pharmacist in charge.

[00:17:59] Speaker 04:
After all of that,

[00:18:00] Speaker 04:
Mr. Corey, counsel said, quote, a defect in this whole process is that there's no judge in this building or in another federal courthouse that really knows the defendant.

[00:18:10] Speaker 04:
essentially intimating that the court may hear from the defendant.

[00:18:15] Speaker 04:
Thereafter, the court made comments such as that he was eager and looking forward to hearing similar to what Judge Lombardi was saying about knowing who this person is, because certainly that is something important to a district court judge in sentencing.

[00:18:27] Speaker 04:
Much to everyone's surprise, counsel said that she was going to be invoking, or excuse me, exercising her right to not

[00:18:34] Speaker 04:
which was completely fine, and the court didn't penalize her for it.

[00:18:37] Speaker 04:
Instead, having sat through that entire hearing, having not heard any mitigation, he decided to stick with his tentative, which was 180 months.

[00:18:45] Speaker 04:
The government doesn't believe there was anything wrong with that.

[00:18:47] Speaker 04:
It was a substantively reasonable sentence in light of the facts that the court sat through during that week-long trial.

[00:18:54] Speaker 01:
I think that you can infer from the transcript that he thought an upward variance was warranted.

[00:19:00] Speaker 01:
Well, certainly.

[00:19:01] Speaker 01:
And I don't think I want to belabor that point, at least for me, but I have some other questions if I can.

[00:19:08] Speaker 01:
Absolutely.

[00:19:09] Speaker 01:
Let's talk about defendants' argument that Count 49 was constructively amended.

[00:19:17] Speaker 01:
So as I looked at that issue,

[00:19:21] Speaker 01:
And I'm looking at testimony and evidence about what I'll call the Grewal audit.

[00:19:28] Speaker 01:
I hope I'm pronouncing.

[00:19:29] Speaker 01:
Graywall, Your Honor.

[00:19:30] Speaker 01:
Graywall, thank you.

[00:19:31] Speaker 01:
And then the IWP audit.

[00:19:35] Speaker 01:
So there's a little bit of commingling there of these different audits, and the defendant was only charged with the Grewal audit.

[00:19:45] Speaker 01:
Okay.

[00:19:46] Speaker 01:
So what I would like to know is, can you tell me what instructions were in place

[00:19:51] Speaker 01:
for the jury members such that they wouldn't get confused.

[00:19:57] Speaker 04:
Well, Your Honor, I think that the strongest instruction was the trial indictment that went back with the jury.

[00:20:02] Speaker 04:
They were given a sanitized version of the trial indictment that specifically articulated the date of the Graywall audit, the conduct at issue in the Graywall audit, which was unique.

[00:20:12] Speaker 04:
It was separate from the IWP audit that you alluded to earlier.

[00:20:16] Speaker 04:
The IWP audit involved the defendant actually being at the pharmacy, walking the auditor through the prescriptions and their records.

[00:20:25] Speaker 04:
Conversely, the charged, Count 49 charged audit, Dr. Graywall's audit, involved her falsification and providing Dr. Graywall with falsified prescriptions.

[00:20:35] Speaker 04:
And the jury heard ample evidence of that.

[00:20:36] Speaker 04:
In fact, a part of the cross-examination of the defendant focused on the Graywall audit.

[00:20:42] Speaker 04:
In fact, we didn't even get to the IWP audit.

[00:20:44] Speaker 04:
It was all about Dr. Graywall.

[00:20:47] Speaker 02:
But the jury instructions referred to just the general obstruction of federal audit.

[00:20:51] Speaker 02:
They didn't specify whether it was the Graywall or the IWP audits, correct?

[00:20:56] Speaker 04:
Absolutely.

[00:20:57] Speaker 04:
But again, the trial indictment did specify.

[00:20:59] Speaker 04:
And they had that trial indictment with them.

[00:21:01] Speaker 04:
And this wasn't a jury that just simply signed off.

[00:21:03] Speaker 04:
They actually had questions.

[00:21:04] Speaker 04:
They presented a jury note, and the party said to come back and instruct the jury on that note.

[00:21:10] Speaker 04:
Notably, they had no questions about Count 49.

[00:21:12] Speaker 04:
There was no question in their minds because it was explicitly stated in the trial indictment that they had with them.

[00:21:17] Speaker 04:
And they certainly had no trouble finding her guilty of that count.

[00:21:20] Speaker 03:
The closing argument did reference the March 17th audit sort of interchangeably with the Graywall audit.

[00:21:31] Speaker 03:
And so the question is whether, under ward, the jury could have found her guilty based on uncharged conduct.

[00:21:39] Speaker 04:
I don't believe so, Your Honor, because unlike Ward, where there was generally confusion about who the victim was, here, again, that trial indictment specifically mentioned which audit we're talking about.

[00:21:50] Speaker 04:
And again, there were distinct characteristics between the Graywall audit and the IWP audit.

[00:21:54] Speaker 04:
So I do not believe it was inappropriate or that the jury wasn't instructed sufficiently to be able to tell the distinction.

[00:22:01] Speaker 04:
And with respect to the closing argument, we were quite clear in that the Dr. Graywall audit involved the, and we walked through the timeline of how it involved the defendant and frankly her sister and others at the pharmacy.

[00:22:15] Speaker 04:
falsifying prescriptions that were then provided to Dr. Graywall via email.

[00:22:21] Speaker 04:
And the jury had all of that.

[00:22:22] Speaker 04:
They had the timeline.

[00:22:24] Speaker 04:
They had the underlying documents of the Graywall audit.

[00:22:26] Speaker 03:
So the opposing counsel points to the language.

[00:22:30] Speaker 03:
And of course, on March 17, the day they dreaded occurred, Daniel Craig went to Irvine Wellness, et cetera, referring to the March 17 audit as being more evidence of her guilt.

[00:22:42] Speaker 04:
Well, certainly, first of all, the IWP audit, it was admissible.

[00:22:47] Speaker 04:
It was direct evidence of her involvement in the scheme.

[00:22:50] Speaker 04:
Certainly, the jury was entitled to use that evidence that went to her intent, to her knowledge.

[00:22:55] Speaker 04:
It could not only be used as to the scheme that was charged, which was quite broad, but certainly it could also be used to her role in the Graywall audit.

[00:23:03] Speaker 04:
It was admissible evidence on both of those grounds, and with respect to the dreaded day, and I was the one making the closing argument, that was with respect to the IWP audit.

[00:23:15] Speaker 04:
That was with respect to the fact that that audit, that the jury saw text messages between the defendant and her co-conspirator, Mr. Esador, who was the

[00:23:23] Speaker 04:
the nominal owner of the pharmacy, that this was now being essentially looked at by auditors, that they were now honing in on the potential fraud at the firm, and that was something that she communicated frequently with her co-conspirator, Mr. Esador.

[00:23:38] Speaker 04:
So I understand counsel's argument with respect to confusion.

[00:23:42] Speaker 04:
I don't believe that's what occurred, not only because the jury certainly had questions, and that notably wasn't one of them, but also because that trial indictment, very different from Ward, it explicitly said what this audit was, and given the distinct characteristics of the Graywall audit, there was no jury confusion with respect to Count 49.

[00:24:00] Speaker 03:
Can you also address the argument opposing counsel makes about the adjustment for use of a special skill?

[00:24:09] Speaker 03:
As I read the government's brief, they seem to pivot to, well, it's a trust, the special position of trust issue, which isn't really what was before the district court with the district court seemed to rely on.

[00:24:24] Speaker 04:
Well, Your Honor, yes, there is the pivot to abuse of trust.

[00:24:29] Speaker 04:
But there also, it wasn't a full pivot.

[00:24:31] Speaker 04:
There was also evidence that the government presented at trial, we call it the magic language, where the defendant was asked to provide Dr. Graywall with essentially coded language that he could use to get those prescriptions approved.

[00:24:45] Speaker 03:
So the argument that, if I understand the argument of opposing counsel correctly, the argument is that

[00:24:51] Speaker 03:
That email with the coded language was to trigger insurance coverage, not to interfere with the audit.

[00:24:59] Speaker 03:
And so the argument is there really was no coded language in the prescriptions, the patient prescriptions that were provided to Dr. Graywall.

[00:25:08] Speaker 04:
Well, just because Dr. Craywell didn't ultimately use that language doesn't exculpate the defendant.

[00:25:14] Speaker 04:
She still affirmatively provided that language, which was very unorthodox.

[00:25:18] Speaker 03:
But was it for an audit, or was it for triggering insurance coverage that the Postal Council argues that was just for insurance coverage?

[00:25:27] Speaker 04:
I don't know that we presented that evidence for one or the other.

[00:25:32] Speaker 04:
It was really just the unorthodox nature of a pharmacist providing that magic language to a prescriber, which really doesn't happen and shouldn't happen.

[00:25:41] Speaker 04:
And it was indicative of her knowledge of the scheme, of her intent in the scheme and her complicitness, frankly, in what was happening, and her eagerness in furthering the scheme.

[00:25:51] Speaker 04:
So I do believe that was an independent grounds for the skill, but certainly the abuse of trust.

[00:25:57] Speaker 04:
Again, the court certainly appreciated that she was a licensed pharmacist in the state of California.

[00:26:03] Speaker 04:
was incumbent on her.

[00:26:04] Speaker 04:
There was a higher sense of culpability, as opposed to her co-defendants, who didn't have that same level of trust with the state of California.

[00:26:12] Speaker 01:
Mr. Magadis, there's also this issue of Rule 32 that overlays this.

[00:26:20] Speaker 01:
So even if that's correct, don't we have to send this back to the district court to rule on the PSR objection?

[00:26:30] Speaker 04:
I don't believe so.

[00:26:31] Speaker 04:
I do think, again, that was a very voluminous hearing.

[00:26:33] Speaker 04:
It was two parts.

[00:26:35] Speaker 04:
We had to break for lunch, in fact.

[00:26:37] Speaker 04:
The court adequately addressed counsel's arguments.

[00:26:39] Speaker 04:
One of the biggest issues that they had was for loss, where Mr. Corey, trial counsel, was representing that loss was only $800,000.

[00:26:45] Speaker 04:
Certainly, the court sat and listened to all those arguments, only then to rebut and to disregard that argument given.

[00:26:53] Speaker 01:
I didn't see anywhere where Judge Wright said, I'm overruling the defendant's objection.

[00:27:00] Speaker 01:
Nothing really even close to that.

[00:27:02] Speaker 01:
The closest it comes, he came was, at one point he said, I'd like to move on to sentencing now.

[00:27:08] Speaker 01:
And then your call, I think it was your colleague,

[00:27:11] Speaker 01:
uh... at the united states attorney's office said okay let's do that of some nature but but defendants didn't say anything.

[00:27:17] Speaker 04:
Well certainly the district court adopted the PSR and the revised PSR and i think that amounts to to uh... certainly a consideration of all the objections but but to the extent that he didn't explicitly uh... overrule it it's clear that in adopting the PSR in in articulating the the enhancements that he was going to be using in this case uh... that was abundantly clear uh... to the parties.

[00:27:38] Speaker 02:
I don't think adopting the PSR

[00:27:40] Speaker 02:
and saying that I'm going to rely on that analysis is really sufficient where there are factual disputes.

[00:27:48] Speaker 02:
I mean, any sentence is a big deal, but a 180-month sentence is a very big deal.

[00:27:53] Speaker 02:
And when there are factual disputes on the record, I think it's incumbent on the court to resolve those factual disputes.

[00:27:59] Speaker 02:
And as I read the record, and correct me if I'm wrong, it's unclear

[00:28:03] Speaker 02:
whether the special skills assessment was based on the communications to Gruval or whether it's the Armstrong and part of the government's alternative argument here is that, well, the Armstrong information's in the record, that's sufficient.

[00:28:18] Speaker 02:
Shouldn't we be able to tell from the record what the basis of the court's factual findings is in order to make that enhancement?

[00:28:26] Speaker 02:
And the same with the loss.

[00:28:27] Speaker 02:
I couldn't tell what the district court was really relying on in terms of ruling on the factual objections on loss.

[00:28:34] Speaker 04:
And again, Your Honor, perhaps he could have used clearer language, but being in the courtroom and having that debate versus are we talking about an $800,000 case or an $11 million case,

[00:28:45] Speaker 04:
it was clear that the court was rejecting counsel's arguments that it was only 800,000.

[00:28:49] Speaker 04:
And again, this court is entitled, and frankly, the district court is entitled to use its presence and having sat through that week-long trial, having sat through the voluminous evidence that the government presented, including through agent testimony.

[00:29:03] Speaker 04:
In fact, the agent is here today who testified as to the $11 million that was billed during that four-month time period that the defendant was the pharmacist in charge.

[00:29:11] Speaker 04:
The court heard that evidence.

[00:29:12] Speaker 04:
All that was required was to prove it

[00:29:14] Speaker 04:
a presumption and that was clearly had that happened at a trial and the court was entitled to rely on that at sentencing.

[00:29:22] Speaker 03:
Can I ask again about the loss issues?

[00:29:26] Speaker 03:
Opposing counsel relies on paragraph 19 of the PSR, which is in the background section.

[00:29:34] Speaker 03:
But it says that there was news reports of rampant fraud by pharmacies like IWP that were paying kickbacks for medically unnecessary prescriptions.

[00:29:48] Speaker 03:
Ms.

[00:29:50] Speaker 03:
Winn raised the argument that the prescriptions issued by Winn were not all medically unnecessary.

[00:29:58] Speaker 03:
There was no evidence to that effect and argued that the district court didn't rule on that particular argument.

[00:30:06] Speaker 03:
Can you address that argument?

[00:30:08] Speaker 04:
And I apologize, so the argument was that that there were news reports.

[00:30:13] Speaker 03:
That that is when argued that the government failed to prove that all of the prescription she prepared were medically unnecessary.

[00:30:23] Speaker 03:
And she argues that the PSR suggested.

[00:30:26] Speaker 03:
that they may have been, or that some pharmacies were issuing medically unnecessary prescriptions.

[00:30:33] Speaker 04:
Well, I'm not sure, frankly, that that would be an appropriate objection.

[00:30:35] Speaker 04:
That didn't go to any of the enhancements.

[00:30:37] Speaker 04:
That was frankly a trial issue, which the government did prove, beyond a reasonable doubt, that those prescriptions that issued were fraudulent.

[00:30:45] Speaker 04:
I don't believe it's necessary for the government to prove that they were medically unnecessary.

[00:30:49] Speaker 04:
Certainly, they can be medically necessary, but still fraudulent.

[00:30:52] Speaker 04:
And the government presented ample testimony that the whole process, the way that these prescriptions were referred to the pharmacy was through marketers who were paid illegal kickbacks, that the defendant was aware of that.

[00:31:04] Speaker 04:
And so I'm not sure that it was incumbent on the district court to rule on that objection to the extent that it was made.

[00:31:11] Speaker 04:
That seems like a jury question that they certainly breached in finding her guilty on all counts.

[00:31:18] Speaker 03:
Can you pivot to the Speedy Trial Act issue?

[00:31:21] Speaker 04:
I'm happy to.

[00:31:22] Speaker 04:
So a little bit of background.

[00:31:26] Speaker 04:
Certainly, this case was charged December of 2019, so just shy of our March COVID-19 outbreak.

[00:31:34] Speaker 04:
Thereafter, there were three trial continuances, each of which the defendant signed on to.

[00:31:38] Speaker 04:
It was at fourth continuance, and I believe it was September of 2021, that the government filed an ex-party application.

[00:31:45] Speaker 04:
Very different from the routine stipulations that we typically file when all parties are signed on.

[00:31:50] Speaker 04:
So we filed an ex-party application, and it did have two of the defendant's signatures on there, because certainly they were the ones requesting the time, given the pandemic, given their need to continue to prepare for trial.

[00:32:03] Speaker 04:
On the government's ex-party application, which I happen to have a copy of, on the front- And when was that filed?

[00:32:08] Speaker 04:
This was filed on September 21st of 2021.

[00:32:11] Speaker 04:
This is at docket 165, but I know there's an ER site somewhere for it.

[00:32:17] Speaker 04:
In the caption, it says, to continue the trial over the objection of defendant Nguyen.

[00:32:22] Speaker 04:
On the first page, it says, over the objection of defendant San Nguyen.

[00:32:25] Speaker 04:
And it notes in the actual application,

[00:32:28] Speaker 04:
that despite conferring with counsel, defendant Nguyen did not provide a legal basis for her objection.

[00:32:36] Speaker 04:
And certainly, the government filed the ex-party application, and it was ruled on quite quickly by the district court.

[00:32:41] Speaker 04:
But as Judge Labordy noted, there are mechanisms for counsel to push back on that.

[00:32:47] Speaker 04:
If not filing the opposition, certainly a motion for reconsideration could have been filed.

[00:32:52] Speaker 04:
Instead, what happened was an entire year passed, an entire year passed before council filed a motion to dismiss for speedy trial violations.

[00:33:01] Speaker 04:
But importantly, and I apologize that this didn't make its way into the government's papers, importantly, in May of 2022, and I have the docket site,

[00:33:10] Speaker 04:
In May of 2022, Defendant Nguyen filed or at least requested a continuance because counsel had a conflict in September of 2022.

[00:33:19] Speaker 04:
And so, counsel noted that over a year would be presumptively unreasonable.

[00:33:25] Speaker 04:
But there are considerations in Henry that this court has articulated for whether or not that delay was truly unreasonable.

[00:33:32] Speaker 04:
One consideration is, was the defendant in custody or on bond?

[00:33:36] Speaker 04:
Certainly she was on bond in this case.

[00:33:38] Speaker 04:
Another consideration, did she file a motion for severance?

[00:33:40] Speaker 04:
She didn't in this case.

[00:33:42] Speaker 04:
And finally, has the defendant consistently been invoking her speedy trial rights?

[00:33:46] Speaker 04:
And here, she did not.

[00:33:48] Speaker 04:
Not only did she sit silent when the court granted the government's ex-party application,

[00:33:52] Speaker 04:
But a year went by before she filed a motion to dismiss.

[00:33:56] Speaker 04:
And before that, notably, she didn't file a motion but requested a continuance.

[00:34:02] Speaker 04:
And I'm going to direct the court to the docket entry.

[00:34:07] Speaker 01:
Yeah, I was going to ask you, is that May 2022 continuance in the record?

[00:34:13] Speaker 04:
It is.

[00:34:13] Speaker 04:
Well, it's a CR site.

[00:34:15] Speaker 04:
So it's CR 185.

[00:34:18] Speaker 04:
on the criminal docket, CR 185.

[00:34:21] Speaker 02:
And that's the next part in motion that was filed, or what type of document was that?

[00:34:25] Speaker 04:
So what happened was the government actually filed another ex-party application after conferring with defense counsel on the schedule for pretrial motions and expert disclosures.

[00:34:34] Speaker 04:
Counsel notified us that the client was going to be requesting a continuance.

[00:34:38] Speaker 04:
And to get ahead of it, the government filed an ex-party application and noted this issue.

[00:34:43] Speaker 04:
And defense filed an opposition to that.

[00:34:45] Speaker 04:
And so what the court will see is in the opposition,

[00:34:49] Speaker 04:
which again is at docket 185, and on page four, counsel writes, indeed, proceeding with trial on November 15th, 2022, given Nguyen's counsel's conflicting schedule, which is largely the result of court closures in response to the pandemic, will effectively rob Nguyen of her right to be represented by counsel of her choice.

[00:35:10] Speaker 04:
So notably, it is actually the defendant who's requesting a continuance before that November 2022 trial date.

[00:35:16] Speaker 04:
And one of the basis is the result of court closures in response to the pandemic, which leads me to another point that although not

[00:35:26] Speaker 04:
explicitly articulated in the application and the proposed order, although we do know that COVID-19 had presented an issue in counsel conferring with their clients.

[00:35:35] Speaker 04:
At the motion to dismiss hearing, the court clearly talked about the effects of the global pandemic and that it was unreasonable to believe that we could proceed to trial in 2021.

[00:35:44] Speaker 04:
And in counsel's papers, they talk about normalcy at that time, but it was far from normal at that time.

[00:35:50] Speaker 04:
In fact, I did one of the first trials in our district in June of 2021, and that wasn't normal.

[00:35:56] Speaker 04:
There was a priority for in-custody defendants.

[00:35:59] Speaker 04:
And even at that time, there could only be three trials at any given moment, and they had to be on all different floors.

[00:36:05] Speaker 04:
And so in this case, to go to trial in September or November of 2021 when all the defendants were on bond was not feasible.

[00:36:13] Speaker 04:
The court noted as much, although not in 2021,

[00:36:16] Speaker 04:
but it certainly commented on that in 2022.

[00:36:19] Speaker 04:
And the court is entitled to take that independent reasoning into account as well.

[00:36:24] Speaker 04:
With respect to everybody's on board, which counsel noted

[00:36:28] Speaker 04:
Again, in context, and Judge Labordy noted, this was a year later.

[00:36:32] Speaker 04:
This was a hearing a year later.

[00:36:33] Speaker 04:
It's unclear.

[00:36:34] Speaker 04:
Unfortunately, no one pressed the court for what did he mean specifically about everybody's on board.

[00:36:39] Speaker 04:
But it's notable.

[00:36:40] Speaker 04:
This was a pretrial conference where there were multiple.

[00:36:44] Speaker 04:
I'd like to venture a guess that it was certainly over six, maybe as much as eight or nine motions that were on calendar that day.

[00:36:50] Speaker 04:
And the court was certainly prepared.

[00:36:51] Speaker 04:
I know counsel speculating that the court hadn't read the papers.

[00:36:54] Speaker 04:
That's far from the truth.

[00:36:55] Speaker 04:
The court was prepared to rule on all of these motions and in fact did rule.

[00:36:59] Speaker 04:
So the idea that he did not appreciate that the ex-party application the government filed that noted Ms.

[00:37:06] Speaker 04:
Nguyen's objection, that he didn't review the motion to dismiss when again they parrot the arguments about that she didn't sign on to that continuance.

[00:37:15] Speaker 04:
That's just not practical.

[00:37:16] Speaker 04:
It's not plausible that the court was operating under the assumption that Ms.

[00:37:21] Speaker 04:
Nguyen was on board for that continuance as well.

[00:37:25] Speaker 04:
It's not plausible.

[00:37:26] Speaker 04:
The court clearly appreciated that.

[00:37:28] Speaker 04:
There was an independent reason to grant the speedy trial request.

[00:37:32] Speaker 04:
And that delay of 378, that was reasonable in light of all of the factors articulated.

[00:37:37] Speaker 04:
Thank you.

[00:37:39] Speaker 03:
Thank you for your argument.

[00:37:41] Speaker 03:
You have a few minutes left for rebuttal.

[00:37:47] Speaker 00:
Thank you, Your Honor.

[00:37:48] Speaker 00:
Let me start with the speedy trial stuff that the government counsel was just mentioning.

[00:37:54] Speaker 00:
The first issue I want to raise is, counsel said that it's a requirement that the defendant must consistently be asserting her speedy trial act rights.

[00:38:03] Speaker 00:
That's not true.

[00:38:04] Speaker 00:
If the court looks at the Lloyd case, Lloyd was granted, or this court affirmed, or reversed, I guess.

[00:38:12] Speaker 00:
And Lloyd did not consistently

[00:38:16] Speaker 00:
assert his rights in that case.

[00:38:19] Speaker 00:
Another defendant did, but the court treated them the same way.

[00:38:23] Speaker 00:
Ms.

[00:38:23] Speaker 00:
Nguyen asserted her rights the way that you're supposed to do it, by filing a motion to dismiss.

[00:38:29] Speaker 00:
The court or the government counsel said that she needed to file for a severance motion.

[00:38:35] Speaker 00:
The Messer case that's cited in our briefs at 197 Fed 3rd 340 says that a severance request is implicit in an objection to a Speedy Trial Act continuance request.

[00:38:46] Speaker 00:
Um,

[00:38:49] Speaker 00:
Government counsel also noted that it put it in its ex-party application, the fact that defendant did not provide a legal basis for objecting, that's the government's opinion.

[00:38:59] Speaker 00:
It would have been nice for Judge Wright to give us an opportunity to address that.

[00:39:03] Speaker 00:
So the fact that the government put that in the record, I don't think carries very much weight.

[00:39:07] Speaker 00:
I'm not familiar with CR 185 right now at this moment, and I think if the court is inclined to rule against my client on the Speedy Trial Act issue,

[00:39:17] Speaker 00:
on any basis related to the May request, I'd like an opportunity to address that in writing.

[00:39:25] Speaker 00:
So, you know, I just, I haven't had a chance to go back and look at the record while the argument was being made.

[00:39:33] Speaker 00:
I would also just like to go back to the issue having to do with the constructive amendment, and note government counsel's main argument was that the indictment went back to the jury.

[00:39:45] Speaker 00:
And I just want to note for the court that the indictment went back to the jury in Ward, and that didn't make any difference in the Ward case.

[00:39:51] Speaker 00:
This court still ruled that there was a constructive amendment of the indictment there, despite the fact that the jury was holding onto a copy of the indictment.

[00:39:59] Speaker 01:
Um, isn't the jury questions that came, um, during deliberations, isn't that indicative that they have, that they were using the indictment as a guide, that they were able to sort the evidence?

[00:40:14] Speaker 00:
I don't think so, Your Honor.

[00:40:15] Speaker 00:
The questions that came out actually had to do with the lack of evidence on counts 15 through 21.

[00:40:21] Speaker 00:
The government failed to introduce any prescriptions or offer any testimony from the doctor who had prescribed or supposedly prescribed those prescriptions.

[00:40:31] Speaker 00:
And so what the jury notes had to do with was, where's the evidence on these counts?

[00:40:36] Speaker 00:
That's primarily what happened.

[00:40:38] Speaker 00:
The fact that a note doesn't come out can't mean on every occasion that the jury didn't have any questions.

[00:40:45] Speaker 00:
I think probably what it means is that the jury thought that it could convict on Count 49 based upon the evidence that the government put forward about the Irvine Wellness audit as opposed to the Graywall audit.

[00:40:58] Speaker 00:
And I do want to just point out that, you know, as the court had noted earlier, I mean, the government very specifically conflated the two of them during the closing arguments.

[00:41:12] Speaker 00:
I see I run out of time, and there were many other issues that the court raised that I didn't get a chance to address.

[00:41:17] Speaker 00:
Other questions?

[00:41:19] Speaker 00:
Are there any other questions?

[00:41:20] Speaker 00:
Apparently not.

[00:41:21] Speaker 03:
I think we have your argument.

[00:41:22] Speaker 03:
We thank both sides for their argument.

[00:41:25] Speaker 03:
This complicated case, the case of United States versus Sandy Winn is submitted and we're adjourned for this session.

[00:41:52] Speaker 03:
This court for this session stands adjourned.