[00:00:00] Speaker 04:
I think we're on Wilson, is that right?

[00:00:03] Speaker 04:
Yes.

[00:00:04] Speaker 04:
OK, 23-2073, US versus Wilson.

[00:00:09] Speaker 03:
Good morning, guys.

[00:00:11] Speaker 04:
Good morning.

[00:00:12] Speaker 03:
Thank you.

[00:00:26] Speaker 04:
Well, you see how that works, I think.

[00:00:27] Speaker 03:
Yeah.

[00:00:28] Speaker 03:
I've watched the other hearings.

[00:00:30] Speaker 03:
Notice that administrative subpoenas aren't as exciting as the other matters.

[00:00:33] Speaker 03:
I'll try to make it as unexciting as possible.

[00:00:36] Speaker 03:
I think the court would appreciate that.

[00:00:39] Speaker 03:
Your Honor, this case arises from an overly broad administrative subpoena issued on my client, Dr. Rick Wilson.

[00:00:45] Speaker 03:
This is really, for lack of a better term, the classic phishing.

[00:00:49] Speaker 04:
Well, let's get to the note.

[00:00:52] Speaker 04:
It was overbroad to start with.

[00:00:53] Speaker 04:
The judge thought that, narrowed it.

[00:00:55] Speaker 04:
How would you narrow it further to make it reasonable?

[00:00:58] Speaker 03:
Well, can I back up for a minute?

[00:00:59] Speaker 03:
Sure.

[00:00:59] Speaker 03:
Yeah, yeah.

[00:01:00] Speaker 03:
Because if I give you procedural history, you'll understand why we're here, I think.

[00:01:05] Speaker 03:
The court originally, the government filed a petition and served it on Dr. Wilson.

[00:01:14] Speaker 03:
Dr. Wilson lives in California, took a little time, had to call three lawyers, finally found me.

[00:01:20] Speaker 03:
And in the meantime, the government filed not only

[00:01:24] Speaker 03:
They filed a motion for default judgment as well.

[00:01:27] Speaker 03:
I got that vacated.

[00:01:28] Speaker 03:
It was a court entry for default.

[00:01:32] Speaker 03:
Once you got vacated, I filed a motion to vacate that.

[00:01:35] Speaker 03:
In addition, they filed a petition for enforcement.

[00:01:38] Speaker 03:
I proposed that petition, filed an answer, of course, to the petition, and then filed a motion to dismiss.

[00:01:45] Speaker 03:
It was granted as overly broad.

[00:01:48] Speaker 03:
Now, what happened was the government came back.

[00:01:51] Speaker 03:
And they filed a motion for reconsideration under Rule 59.

[00:01:55] Speaker 03:
And in the alternative, under Rule 15, a motion to amend the petition.

[00:02:02] Speaker 03:
Now, it's interesting.

[00:02:03] Speaker 03:
When I filed a response to the Rule 59 motion for reconsideration, I pointed out that the government didn't address one factor required under Rule 59 to grant reconsideration.

[00:02:15] Speaker 03:
And the government didn't even address it on reply.

[00:02:19] Speaker 03:
didn't even try to justify the original filing of their motion.

[00:02:22] Speaker 03:
If it was a civil case, I would have followed Rule 11 on it, frankly.

[00:02:26] Speaker 03:
But it's not.

[00:02:27] Speaker 03:
Obviously, it's against the government.

[00:02:29] Speaker 03:
But the amendment petition was granted.

[00:02:31] Speaker 03:
Now, this is where it gets really interesting to me and unique.

[00:02:35] Speaker 03:
Now, to be honest with you, I do mostly civil practice.

[00:02:37] Speaker 03:
This is rare for me.

[00:02:38] Speaker 03:
The doctor found me through another case.

[00:02:41] Speaker 03:
I had actually gotten myself involved in own federal court and felt I was qualified to represent him.

[00:02:48] Speaker 03:
What they did was they filed the amended petition.

[00:02:49] Speaker 03:
And the district court not only grants the amended petition, so you would figure, because rule 15 is being invoked, the petition would be filed.

[00:02:59] Speaker 03:
Then I would file an answer, and then I would file my arguments.

[00:03:03] Speaker 03:
What the district court here did was kind of surprising to me.

[00:03:06] Speaker 03:
What it did was it turned around, and it not only granted it, it said the admission is deemed, the petition is deemed filed already.

[00:03:16] Speaker 03:
And it's deemed granted, almost if, I guess, the parallel here is a judgment on the pleadings, and it's enforced, and Dr. Wilson is ordered to comply with the subpoena.

[00:03:27] Speaker 03:
It just went right through everything, didn't give me a chance to apply.

[00:03:31] Speaker 02:
So that's not an issue.

[00:03:32] Speaker 02:
I mean, you haven't raised the way the district court procedurally handled it as an appellate issue, have you?

[00:03:38] Speaker 03:
Not directly, but I did explain it all, and I felt that part

[00:03:43] Speaker 03:
The over-breath was my real first chance to argue this.

[00:03:47] Speaker 03:
Now, if you go back, I was actually listening to one of your oral arguments yesterday, an emotional reconsideration came up.

[00:03:55] Speaker 03:
I believe you were asking some of the things.

[00:03:58] Speaker 03:
And the last night, I was sitting in a hotel across the street, I said to myself, well, are they going to say to me tomorrow, why didn't you follow us for reconsideration?

[00:04:05] Speaker 03:
And I submit to you that Rule 59, emotional reconsideration, sounds nice.

[00:04:11] Speaker 03:
It's one of those things that sounds nice in a lawyer's conference room

[00:04:14] Speaker 03:
But I've never filed one in my 17 years because I've lost other people to deal with the aftermath of filing a lawsuit.

[00:04:21] Speaker 04:
I'm getting confused.

[00:04:22] Speaker 04:
Are you making procedural objections to the... It's one of the objections that I'm... Because I'm like Judge Parson.

[00:04:28] Speaker 04:
I didn't see that.

[00:04:29] Speaker 03:
Oh, I'm just pointing out as well why we are here and really we could get to... You're better off focusing on the merits.

[00:04:36] Speaker 03:
I apologize.

[00:04:36] Speaker 03:
Okay.

[00:04:36] Speaker 03:
I just wanted to make sure the court had a full understanding of how we got here so fast without those things and I apologize.

[00:04:42] Speaker 03:
Now, as we discussed, the district court originally quashed the subpoena, which it was correct to do.

[00:04:47] Speaker 03:
What was the change in the amended petition?

[00:04:50] Speaker 03:
Well, the real change was the addition of a declaration of DEA investigator Shirley Scott.

[00:04:57] Speaker 03:
I submit to you that that declaration, and it's in the appendix of DNF 81 through 88, just for the record, that the

[00:05:09] Speaker 03:
Declaration of the DEA investigator, it's really nothing more than boilerplate, conclusory, and contradictory as I mentioned in the briefing.

[00:05:18] Speaker 03:
Now administrative subpoenas as we all know are really for lack of a better term.

[00:05:22] Speaker 03:
They're an end around the Rule 41 warrant process.

[00:05:26] Speaker 03:
In the basis to compel productions and Dr. Wilson here what the government did was it used generic wording, magic words if you will, and the way they presented it's if you

[00:05:36] Speaker 03:
If the government says these magic words, we get everything we ask for.

[00:05:40] Speaker 03:
I've come before you today to ask you to, of course, to quash that subpoena.

[00:05:45] Speaker 03:
Now, Your Honor, as well, I'm not waving any of the written arguments.

[00:05:47] Speaker 03:
As you know, I have a limited amount of time, so I have to focus on several of the arguments I deem most important in the limited time.

[00:05:54] Speaker 00:
At this point, can you address Judge Hartz's question, which is, what did the district court do wrong?

[00:06:00] Speaker 00:
It pared it down considerably.

[00:06:02] Speaker 00:
What more did the district court need to do that would satisfy you?

[00:06:05] Speaker 03:
It accepted Scott's declaration on his face without giving any due consideration for all of its factors.

[00:06:14] Speaker 03:
One of the things that we all know from law school is cross-examination is the greatest legal engine ever devised for discovering the truth.

[00:06:22] Speaker 03:
Her affidavit, she said it.

[00:06:24] Speaker 03:
It was accepted at face value by the district court, and it was immediately enforced based on that.

[00:06:29] Speaker 03:
That was the only difference.

[00:06:31] Speaker 03:
I'm arguing, substantively, between the original subpoena that the district court found was overbroad and the updated subpoena.

[00:06:40] Speaker 04:
And what in the affidavit should be challenged?

[00:06:44] Speaker 03:
Paragraphs 25 through 27, for example.

[00:06:46] Speaker 03:
Let me start with this.

[00:06:49] Speaker 04:
And you argued this in your brief.

[00:06:50] Speaker 03:
Absolutely.

[00:06:53] Speaker 03:
In Paragraphs 25 through 27 of the Scott Declaration, she raises the specter but doesn't say it.

[00:07:01] Speaker 03:
raises the specter.

[00:07:02] Speaker 03:
It's like the seriousness of the accusation is what gives us support, root straps.

[00:07:07] Speaker 03:
If you're 25 to 27, and by the way, if you see me doing this, I have a prosthetic leg, so sometimes I have to move to get my blood flowing, so I apologize.

[00:07:15] Speaker 03:
No apology for that.

[00:07:20] Speaker 03:
It says, it raises the specter that Dr. Wilson's prescribing practices directly caused the death of 17 patients,

[00:07:26] Speaker 03:
that the DEA seeks records for.

[00:07:29] Speaker 03:
In other words, he described these benzodiazepines, and they killed them.

[00:07:34] Speaker 03:
That's when they raised the specter, but they don't actually say it.

[00:07:37] Speaker 03:
Or she doesn't actually say it.

[00:07:38] Speaker 03:
Then right after, Your Honors, the Scott Declaration immediately contradicts itself, as in paragraphs 28 and 29, Scott declares that the DEA needs the requested records because the DEA has information that Dr. Wilson's patients were not taking the prescribed medication.

[00:07:55] Speaker 03:
would suggest that the patients were selling the controlled substance or trading it for drugs.

[00:08:00] Speaker 03:
This is the classic catheter track.

[00:08:03] Speaker 03:
They took the substance, they died.

[00:08:05] Speaker 03:
It's his fault.

[00:08:06] Speaker 03:
They didn't take the substance.

[00:08:07] Speaker 03:
They died.

[00:08:08] Speaker 03:
It's his fault.

[00:08:10] Speaker 03:
These are things that were not challenged at the district or could not have been.

[00:08:15] Speaker 03:
We really didn't.

[00:08:16] Speaker 02:
So let me ask you about this affidavit issue.

[00:08:19] Speaker 03:
Yes.

[00:08:19] Speaker 02:
So I'm just wondering.

[00:08:24] Speaker 02:
It seems like these kind of subpoenas are always decided if there's any evidence presented on the basis of an affidavit and that there's not testimony, not cross-examination of it.

[00:08:39] Speaker 02:
It reminds me like a warrant, a search warrant to go get somebody's records.

[00:08:46] Speaker 02:
I mean, those aren't presented, an IRS warrant.

[00:08:50] Speaker 02:
I mean, they're not.

[00:08:52] Speaker 02:
They don't stick an IRS agent up on the stand and make them testify before they let them issue an administrative subpoena or they enforce one.

[00:09:02] Speaker 03:
Right.

[00:09:02] Speaker 03:
That's correct.

[00:09:03] Speaker 03:
But I was not given a chance to even look at it.

[00:09:08] Speaker 03:
I think the court should look at it.

[00:09:09] Speaker 03:
I respectfully request that you look at the substance in the affidavit that there is no substance.

[00:09:14] Speaker 03:
It uses what I like to refer to as scary rhetorical devices and allegations, but it omits

[00:09:20] Speaker 03:
material facts that had they been presented to the court, it would have really raised the questionable voracity of the Scott Declaration.

[00:09:28] Speaker 03:
For example, Dr. Wilson, he doesn't prescribe opiates.

[00:09:32] Speaker 03:
He certainly doesn't prescribe fentanyl or any other types of pain medication.

[00:09:38] Speaker 03:
He works for high-risk communities.

[00:09:40] Speaker 03:
The Declaration is misleading, and it makes the most serious allegations against Dr. Wilson

[00:09:46] Speaker 03:
While it emits crucial information, what he does, if anybody who reads this who does not know what Dr. Wilson does, thinks that he prescribes the opiates that killed the people that they allege died as a result of opiates and other factors, one of them in there is listed as a heart condition.

[00:10:02] Speaker 03:
He doesn't prescribe.

[00:10:03] Speaker 03:
He prescribes benzodiazepines, as I understand it.

[00:10:07] Speaker 03:
They were, I'm not a medical doctor, I only play one, and I didn't state, I stated the residents in and not the holiday and expressed, please forgive me,

[00:10:16] Speaker 03:
But as I understand it, they replaced barbiturates as a safer alternative to barbiturates, benzodiazepines.

[00:10:24] Speaker 03:
It doesn't explain this in the declaration.

[00:10:26] Speaker 03:
It's designed to upset the reader.

[00:10:28] Speaker 03:
So as I mentioned earlier, it's the seriousness of the allegation that supports it.

[00:10:32] Speaker 03:
There's no facts under it.

[00:10:34] Speaker 03:
And I think unwittingly, the government actually makes my case partially, because if you look at some of the pleadings that they filed, they highlight the same exact languages that they've used before the district court.

[00:10:47] Speaker 03:
other district courts to say, hey, we use this language.

[00:10:50] Speaker 03:
In these cases, Zadeh, the Fifth Circuit, accepted this language.

[00:10:55] Speaker 03:
So you accept it here.

[00:10:56] Speaker 03:
It's boilerplate.

[00:10:58] Speaker 03:
While granted, the administrative subpoena is not subject to the same Fourth Amendment level warrant requirements.

[00:11:05] Speaker 03:
Subpoena, the warrant's higher, and subpoena's lower.

[00:11:08] Speaker 03:
It is still subject to the Fourth Amendment.

[00:11:10] Speaker 03:
There has to be particularized and specific facts enunciated in the declaration to support

[00:11:17] Speaker 03:
seeking these documents.

[00:11:18] Speaker 03:
The government just wants to say, we've alleged it, that's enough.

[00:11:22] Speaker 00:
Had he surrendered his license by the time of the affidavit?

[00:11:25] Speaker 03:
His license is surrendered in New Mexico, yes.

[00:11:28] Speaker 00:
As of the time of the affidavit?

[00:11:30] Speaker 03:
That's a pretty big admission.

[00:11:33] Speaker 03:
It's public record.

[00:11:35] Speaker 03:
There's an agreement of him to surrender his license in I believe 2020.

[00:11:38] Speaker 00:
You're almost suggesting that he did nothing wrong and yet he agreed to a suspension of his license and was the second biggest prescriber in New Mexico despite living in California.

[00:11:51] Speaker 00:
That's a good start.

[00:11:54] Speaker 03:
I'm not suggesting anything.

[00:11:55] Speaker 03:
I'm suggesting that he should be jealously guarding the Fourth Amendment.

[00:12:01] Speaker 03:
And his HIPAA, as you've seen, argued that there's HIPAA involved here as well.

[00:12:06] Speaker 03:
But he agreed with that argument.

[00:12:08] Speaker 03:
And when you start looking at it, as much as I had, you start to realize that some of these arguments kind of, in ways, and especially preparing for this argument, that the HIPAA argument, the Fourth Amendment argument, as well as the Fifth Amendment argument, kind of all are intertwined.

[00:12:23] Speaker 03:
The second prong of the HIPAA argument that I argued in there

[00:12:30] Speaker 03:
Read it to you.

[00:12:30] Speaker 03:
The request is specific and limited in scope to the extent reasonably practicable in light of the purpose sought.

[00:12:36] Speaker 03:
Now to answer your question, Judge Phillips, you had talked about, I'm not saying, I'm merely arguing that the government has to do more than just say, oh, he surrendered his license, so he must have done everything else we accused him of.

[00:12:48] Speaker 00:
So is your position then that no subpoena, that nothing should have been allowed by the district judge?

[00:12:56] Speaker 03:
I think it should have been much more supported than just by bold accusations, saying the bold accusations of the declaration.

[00:13:04] Speaker 03:
That's what I'm saying, Judge Phillips.

[00:13:06] Speaker 00:
OK.

[00:13:06] Speaker 03:
I'm going to start with the rest of my time, if the court allows me to do so.

[00:13:13] Speaker 03:
May I, Judge?

[00:13:14] Speaker 03:
Yes.

[00:13:15] Speaker 03:
Oh, thank you, Your Honor.

[00:13:16] Speaker 03:
I wasn't sure if you were nodding at me or just moving your head.

[00:13:20] Speaker 04:
Nodding to sleep.

[00:13:34] Speaker 01:
to whether the respondent violated the Controlled Substances Act, and to aid in that investigation, reasonably sought various of respondent's patient records to determine whether his prescribing practices in fact violated that statute.

[00:13:46] Speaker 01:
The district court reasonably tailored the government's subpoena to provide for a turnover of records that would exactly further that investigatory purpose.

[00:13:57] Speaker 01:
Respondent here has been unable to articulate how the district court erred,

[00:14:01] Speaker 01:
And in fact, the Scott Declaration makes clear that all of the records sought in this case would materially advance the government's investigation.

[00:14:08] Speaker 01:
I'll take first respondent's contention that the Scott Declaration is in some way inconsistent.

[00:14:13] Speaker 01:
Now, the declaration refers that several of respondent's patients, very soon after they'd been prescribed controlled substances, died.

[00:14:23] Speaker 01:
And there were toxicology reports suggesting that some of the benzodiazepines that the respondent had prescribed were in their systems.

[00:14:30] Speaker 01:
That at least suggests that maybe respondent was not properly prescribing benzodiazepines consistent with the Controlled Substances Act requirement that they be prescribed for a legitimate medical purpose.

[00:14:43] Speaker 01:
than for two other patients who didn't have any of the prescribed benzodiazepines in their system, that in fact suggests that Respondent was prescribing controlled substances and those patients were diverting them for illegal uses.

[00:14:55] Speaker 01:
And that's why, for example, urinalysis tests would be necessary to determine whether Respondent was in fact prescribing controlled substances for legitimate medical reasons.

[00:15:04] Speaker 01:
All of these patient records here, the district court appropriately recognized, would further those investigatory means.

[00:15:12] Speaker 01:
Absent additional questions from the court, we urge that you affirm that this report is an enforcement number.

[00:15:22] Speaker 04:
You said without your analysis you couldn't do something.

[00:15:25] Speaker 04:
Are you going to get any of your analysis reports through the subpoena?

[00:15:33] Speaker 01:
But you don't know whether in fact there are such reports.

[00:15:45] Speaker 01:
And in fact the absence of such reports would additionally demonstrate

[00:15:54] Speaker 01:
to prescribe those controlled substances for some of the benzodiazepines if necessary to determine that patients are actually taking them and that, you know, I believe that their urinalysis would demonstrate one way or the other.

[00:16:08] Speaker 04:
So you flew out here for three minutes?

[00:16:13] Speaker 01:
If the court has no other questions, we rest on it.

[00:16:15] Speaker 04:
I don't have any questions.

[00:16:17] Speaker 04:
Okay.

[00:16:17] Speaker 04:
Thank you, Count.

[00:16:18] Speaker 04:
Thank you.

[00:16:21] Speaker 04:
I'm not sure there's anything to rebut at this point.

[00:16:30] Speaker 03:
allowing me to present my case this morning.

[00:16:32] Speaker 03:
They had mentioned the urinalysis.

[00:16:34] Speaker 03:
I do want to make sure that the court does understand this is important, why I have a problem with the Scott Declaration, Judge Phillips, and everything else, and so you understand my argument.

[00:16:44] Speaker 03:
Now, for example, in a methadone clinic, which Dr. Wilson doesn't run, there are such mandates to do urinalysis once a month.

[00:16:50] Speaker 03:
However, in Dr. Wilson's type of practice, there are no such regulations or mandates.

[00:16:55] Speaker 03:
The Scott Declaration, Your Honor, continuates that Dr. Wilson had these requirements,

[00:16:59] Speaker 03:
and that he could be held criminally liable if his patients didn't take the medications as prescribed.

[00:17:04] Speaker 03:
Again, the reader is supposed to keep their attention on the harsh ones.

[00:17:08] Speaker 04:
No one's going to be convicted based on this affidavit.

[00:17:11] Speaker 04:
The declaration was to give enough information to show that it's worth investigating, and these particular types of records would be helpful in this investigation.

[00:17:23] Speaker 04:
Isn't that the only purpose of the declaration?

[00:17:25] Speaker 04:
It may all turn out to be

[00:17:27] Speaker 04:
inaccurate information, but that's the point of the subpoena is to try to get information.

[00:17:33] Speaker 04:
Am I wrong about what the Declaration's purpose is?

[00:17:36] Speaker 03:
I guess I could not state otherwise, I guess in a French way to say it.

[00:17:42] Speaker 03:
I don't think you're wrong about that.

[00:17:43] Speaker 03:
But I think the Declaration, as I've noted earlier, has to have some sort of reasonable relation to the Fourth Amendment.

[00:17:48] Speaker 03:
It has to meet some Fourth Amendment requirements.

[00:17:51] Speaker 03:
It can't be just because the government said so.

[00:17:53] Speaker 03:
I think the underpinning of the Fourth Amendment is that

[00:17:58] Speaker 03:
The government is immediately suspect.

[00:18:01] Speaker 03:
And with your analysis thing, I just want to make the last comment.

[00:18:03] Speaker 03:
If it can't be held criminally liable for failure to conduct your analysis, your analyses, how could an investigation be warranted in the first instance?

[00:18:14] Speaker 04:
Thank you.

[00:18:15] Speaker 03:
And I thank you for your time today, and my first time before you, and I appreciate it.

[00:18:18] Speaker 04:
Thank you.

[00:18:18] Speaker 04:
You're welcome.

[00:18:20] Speaker 04:
Thank you.

[00:18:21] Speaker 04:
Case submitted.

[00:18:22] Speaker 04:
Counts were excused.

[00:18:23] Speaker 04:
Good luck getting back to the East Coast today.