The United States requests a status conference at 3:00 pm today, June 7, 2016, to address the question of whether defendants will waive a jury trial.

The Court has required the United States to order its proof to first address the question of defendants’ knowledge.

The Court has observed that the other elements are, based on the Court’s experience in the Napoli and Arnold trials, relatively easily proved.

A bench trial will permit, as the Court favors, sharp focus on the contested issue of knowledge, while alleviating the United States’ concern regarding jury confusion arising from the order of proof.

The United States respectfully requests that the Court conduct a status conference today at 3:00 pm to determine defendants’ position on this issue.

MS. AULT: We believed that this was addressed to the issue of -- the defendants have brought up this idea that the Government didn't ever give them what we're calling a "blacklist" of illegal Internet pharmacies that they shouldn't ship for.

A couple other small things is: On the Northwest Research motion we made to exclude evidence, the Court denied it, but said that the Government must show -- must tie it to what Fed Ex knew.

There will be evidence that Fed Ex was at the same kind of meetings, for instance, that the post office was at, as was all of the common carriers, where they were hearing from the DEA and the agencies about the subject of online pharmacies.

It's clearly not Brady, because the defendants raised a public-authority defense in which they said they provided us a list with hundreds of federal agents they claimed gave them authority to distribute online-pharmacy drugs.

First of all, the Jury Commissioner has already sent out what I call a "time qualifier," not identifying the case, but rather saying it's going to commence on June whatever it is, and it's anticipated to last for the most part of the summer -- I think through mid August, but we'll talk about that in a minute.

During the pendency of the grand jury investigation, FedEx Express had entered into tolling agreements that effectively added approximately two and a half years to the statute of limitations governing that defendant.

charges, FedEx Express entered into agreements with the United States Attorney’s Office under which the statute of limitations was tolled for almost two and a half years.

A Charge Must be Dismissed if it Fails on its Face to Satisfy the Statute of Limitations Federal Rule of Criminal Procedure 12 generally provides that “[a] party may

also United States v. Stoner, 98 F.3d 527, 533 (10th Cir. 1996) (“an indictment lacking any allegation that [a] conspiracy offense was committed within the limitations period infringes a defendant’s Sixth Amendment right ‘to be clearly informed of the nature and the cause of the accusation against [it]’”); United States v. Ramirez, 324 F.3d 1225, 1228-29 (11th Cir. 2003) (“when a statute of limitations defense is clear on the face of the indictment and requires no further development of facts at trial, a defendant waives his right to raise that defense by failing to raise it in a pretrial motion”).

Yet, as detailed in Part II.A, supra, each of Counts One through Twelve and Fourteen through Fifteen allege purported crimes that — by the express terms of the superseding indictment itself — concluded before the end of 2008.

Stipulation & [Proposed] Order The FedEx defendants will file on August 7, 2015 a motion to continue the date for trial in this matter.

As the dates on the present pretrial schedule, including a September 9, 2015 motions date, are quickly approaching, see Dkt. #68, the parties would benefit from an early resolution of FedEx’s motion to continue.

Accordingly, the parties hereby stipulate and agree that FedEx’s motion to continue the trial date may be heard by the Court on shortened time on August 19, 2015 at 10:00 a.m.

The FedEx defendants will file their motion on August 7, 2015, and the government will file responsive papers by August 17, 2015.

Charles R. Breyer United States District Court Judge U.S. v. FedEx Corp. et al. No. CR 14-380 (CRB) Stipulation & [Proposed] Order

But none of these arguments is availing.

Nonetheless, the government posits that there could be DEA records that are responsive to the subpoena but might constitute hearsay.

To the extent any of the subpoenaed records might not be admissible in FedEx’s case in chief, they would nonetheless be “material” evidence that the government is bound to produce under Federal Rule of Criminal Procedure ...

CR No. 14-380 CRB The United States submits the attached Revised Proposed Scheduling Order for the Court’s consideration reflecting the new Pre-Trial Conference date of May 19, 2016, ordered by the Court at the hearing on March 2, 2016.

Counsel for the United States and for the defendants have met and conferred regarding the attached order and have agreed to the deadlines and dates contained therein, with the exception of the date for the filing of exhibit lists.

The United States proposes a single filing date of April 28, 2016, for all parties.

The attached Proposed Order reflects the two alternate filing deadlines highlighted in bold.

Attorney for the United States Acting Under Authority Conferred by 28 U.S.C. § 515 /s

First, none of the Byrom material is subject to discovery under Rule 16(a)(1) and, in fact, the material is specifically excepted from discovery under Rule 16(a)(2) and the Jencks Act, 18 U.S.C. § 3500. In addition, none of the redacted ...

None of the redacted information involves any communication between the DEA and the defendants and, thus, is not responsive to the subpoena.

First, none of the Byrom materials is subject to discovery under Rule 16(a)(1).

PLEASE TAKE NOTICE that on September 24,2014, at 2:00p.m., or as soon thereafter as the matter may be heard, in Courtroom 6, 1 ih Floor, San Francisco Courthouse, located at 450 5 Golden Gate A venue, San Francisco, California, the Honorable Charles R. Breyer presiding, applicant Kuang-Bao P. Ou-Young will, and hereby does move, for the Court's permission to intervene in the present litigation.

As a result, applicant submitted his second petition for impeachment against named judges to members of the House Judicial Committee on April25, 2014.

On March 24, 2014, the United States instituted a criminal action against a certain individual a/k/a "Raymond Chow" as well as others (Case No. CR14-00196CRB, "Docket G").

In Snyder v. Massachusetts, 291 U.S. 97, 105 (1934 ), the Supreme Court has held that a due process is violated if a practice or rule "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."

This is to certify that a true and correct copy of the following: Defendant-Intervenor Applicant's Notice of Motions and Second Motion to Intervene and Second Motion to Disqualify Judge was delivered in person to the following: Kirstin M. Ault Assistant United States Attorney Kyle F. Waldinger Assistant United States Attorney U.S. Attorney's Office 450 Golden Gate A venue San Francisco, CA 941 02 The foregoing was mailed by the undersigned postage prepaid by Priority Mail to the following: Cristina C. Arguedas Raphael M. Goldman Ted W. Cassman Arguedas, Cassman & Headley, LLP 803 Hearst A venue Berkeley, CA 94710 Date: August 19,2014 Allen Ruby Jack P. DiCanio William J. Casey Patrick M. Hammon Skadden, Arps, Slate, Meagher & Flom, LLP 525 University Avenue, Suite 1100 Palo Alto, CA 94301 Kuong Lm Ou-Young 260 N. Pastoria A venue Sunnyvale, CA 94086

FedEx’s Cites re Constructive Amendment At this morning’s hearing, the parties and Court discussed the law of constructive amendment as it might apply to an instruction that permitted the prosecution in this case to seek a conviction on the basis of FedEx’s alleged knowledge and intent with respect to conduct by non-physicians that was purportedly “outside the course of professional practice and not for a legitimate medical purpose.” FedEx Corporation, Federal Express Corporation and FedEx Corporate Services, Inc. (collectively, “FedEx”) hereby submit for the Court’s consideration the following Ninth Circuit authorities: In United States v. Dipentino, 242 F.3d 1090 (9th Cir. 2001), the defendants were convicted of improperly removing asbestos-containing materials from a hotel in violation of the Clean Air Act.

In United States v. Adamson, 291 F.3d 606 (9th Cir. 2002), the court recognized that a constructive amendment occurs when “there is a complex of facts [presented at trial] distinctly different from those set forth in the charging instrument.” Id. at 615 (quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984)) (alteration by Adamson court).

That possibility results in a constructive amendment of the indictment, requiring reversal, because it “destroy[s] the defendant’s substantial right to be tried only on charges presented in an indictment.” Id. at 1191 (quoting Stirone, 361 U.S. at 217; alteration in original).

The fact that FedEx is charged with allegedly conspiring primarily with pharmacies is not relevant to this analysis; the point is that the charged crime in this case requires proof of FedEx’s knowledge and intent with respect to doctors’ supposed misconduct: as discussed in prior pleadings, the gravamen of the offense charged in the indictment is that FedEx allegedly knew and intended to ship medications prescribed by doctors who were acting outside the usual course of professional practice and not for a legitimate medical purpose.

// // // 1 2 3 4 5 6 7 8 9 U.S. v. FedEx Corp. et al. No. CR 14-380 (CRB) FedEx’s Cites re Constructive Amendment Dated: June 6, 2016 Respectfully submitted,

EXPRESS CORPORATION, and FEDEX

Trial Date: June 6, 2016 Time: 8:30 a.m.

FedEx Corporation, Federal Express Corporation and FedEx Corporate Services, Inc. (collectively, “FedEx”) submit the attached Exhibit List in the above-titled matter.

1 2 3 4 5 6 7 8 9 FedEx reserves the right to update or supplement the list as the defense further reviews the evidence, as new evidence is discovered, and as the government’s case proceeds.

ARGUEDAS, CASSMAN & HEADLEY, LLP By: