ask you a question about the waiver point is that your i'm trying to figure out how this fits with the rest of your argument is it your understanding that this per se rule you're arguing for doesn't mean only that you don't have to show an brief argued that if there was a person a conflict then we don't have to show the adverse effect i don't know if we directly said so in our brief i think if you look at the court cases if there is a per se conflict it's also not automatically a conflict it seems like it's something you can't wave and if you can't wave it seems like a automatically a conflict if that makes sense but i agree the case like it's those differently well then why are you ok but nevertheless you want to start with waivers so you're assuming there's maybe something here that can be waived i think i think that the government decrees at this point that there was an actual conflict and as a secondary argument we argue that it's per se reason i'm starting with waiver if it isn't a per se conflict we're going to have to get to it and my concern again here is i don't i think it's risky to rely so heavily upon the advice of counsel waiver so for example  brown this court said that defendant must be advised not only of the crux of the conflict like the source of it but the possible implications and the only people who could plausibly have discuss those implications with the to alleged crime said to be similar that is the conflict for the attorney which is i guess alleged witness tampering doesn't that have to be substantially similar to obtaining controlled substances fraudulently if you're and how are they similar sure if you're talking about a person a conflict i agree that is not just any investigation out there in the  world that a defense attorney might be under that can give rise to a person a conflict the distinction the government wants to make is that while this might have had to do with witness weight at that i thought you were arguing for a person a conflict we're arguing both i'm arguing if it's st say then we when if it's not per se we think ok also the adverse effect so that gets back to my question how can it be per se if those two things aren't substantially similar i think that if the defense attorney is conduct is related to the investigation of his participation or investigation the defendant's case that even though it's not related to the underlying crime that the defendant is charged with i think that that's an extremely problematic situation and i'm not sure that the stink should matters as in both situations are going to be dealing with the defense attorney asking questions about or being put in a position of trust examining someone with whom in this case clara crap with whom the government is alleging he engaged in misconduct but i agree there is i understand the government's argument on that point i just think that because this is related to the investigation of the case it's closer to relate it than it's a completely random investigation somewhere out there in the world master overdoes it  matter that in this case the the charging authority is the prosecutors who were involved and investigating your client's defense counsel were the same prosecutors who were prosecuting the case  against your client and the reason i say that is it would seem to me that a lawyer who had an incentive to try to curry favor with a prosecutor obviously would be much more inclined to do that in the same case in which the prosecutors were one and the that if it's the same prosecutors you're going to be maybe you could argue the lawyer would would feel sort of compelled to back off so as not to anger the the same prosecutors who were investigating him for something else then it wouldn't really matter right whether or not it was related to the crimes committed by the defendant and it might also apply even i mean you started by saying this isn't going to be any and it is not enough that the person the lawyer is being investigated anywhere around the world but if it's by the same prosecutors it might be enough even if it has nothing to do with the case in question right right well i think ok so the question is under the whether or not at the st they conflict so there are like three imaginable situations right you've got an attorney that's investigated totally unrelated i think we all agree even then there is an actual conflict and there does need to be a waiver right but why isn't it the per se conflict if it happens to be the same prosecutor that's prosecuting the case in question i think is a very strong argument that it should be a person if it's the exact same prosecutor specially of the kind of the exact same prosecutor and it's on a fact that's related to the defense the preparation for the defendant's  trial i absolutely agree i think in that situation it should be out it would have to be really i don't understand why it would have to be related to the i have a concern my concern is that this principle isn't that limited and that if we're going to say any time the same prosecutor who's investigating a lawyer could be for like tax fraud is also prosecuting a criminal case then that lawyer has a person a conflict which might also be on wave a ball in your view which would actually allow a u s attorney's office to disqualify any defendant frivolous investigation just to get a lawyer of the case and i'm not saying any prosecutor would do that but that they're about it neither am i but that is the risk that i would be worried about there's a possibility for a under stand that you want to limiting principle and i agree it was just the same office maybe not per se but i'm sure the government will if you does that but this is the same office and his conduct related to the underlying investigation and i really think he's put in a position where it's prosecutor who's going to be cross examining the same people that are prosecuting the defendant on actions that are related to his preparation for that the waiver in this case was the other that the advice given by the district court was insufficient so then we're left to look at the you know the particular circumstances that you've identified as suggesting that the defense lawyer was pulling  his punches so can you talk about that because as you know you know that i'm not so sure that i'm persuaded that those show anything on the record that support your case but obviously i'm here to be persuaded so tell me where you think objective reasonableness isn't so much an issue as the link right i think the link is less intuitive and what i wanted to make sure i got into day is that to determine if there's a link between not calling mr para and the conflict i think what we should look to is what is the warning that we give defendants when they do waive this conflict and one of those warnings is your lawyer might pull his punches respectfully i think that presenting a technical defen that i can see in those st cases is if they believe in the st group of counts the larger group of counts having to do with false statements is if he they did not believe that he filled out those for record that had she been called she would have likely have stood on her th amendment rights in fact that's what happened during the sensing hearing it did but that had to do with we didn't want to let the was just docket of last week before this or and mr perry did testify in that trial i wasn't present for that trial so i i don't know exactly what you set but i don't think there's any evidence on the record that becky prepare a would have taken the th amendment and not testified in dr perez case and in fact she filed an affidavit saying that she was prepared to testify and planning on testifying until the day of her testimony the because the affidavit say what she would have said it says that i can find in the record and it says that she would have said that she was the one that filled out the forms not dr preparing its three or four pages i can look it up here in a nd and read it and and and that he didn't actually read the forms and that he didn't read the forms and i think not calling her the court appointed the district court pointed out  para would have been subject to cross examination on various topics i don't think that renders calling her an objective under reasonable strategy so it can act as use when she says she filled up the form so that the she handed to him he signed them without reading them there is some support for that in the record though it's sort of minimal it is that she is the one talking to most of the time two employees that henry shine when trying to figure out  he's a good how to say get him off the hook that he didn't reform well if he doesn't read the forms and he doesn't know there's a fall so it's in the forms so even if you sign that he doesn't know what he's signing it has to be an intentionally misleading bet so would be a anyone i guess my answer would be read cross that bridge when we came to it i haven't thought about it before i mean before now but they would have to put in evidence that that's why he wasn't reading the forms and i don't know what that would be sat through the entirety of the evidence in the trial the district court things that would have been detrimental to the defense to call her what's our standard or review on that because i am sort of moved by the fact that the district court sat through the entirety of the evidence whether or not mr parrot testified and if that put everything in a new light i'm not sure that the district court would be in a better position to make that judgment with that your honor as i have ten seconds left so unless there are any other questions i lauren born on behalf of the government as the court knows this case is about a doctor who lied in order to obtain ten thousand pills and has absolutely no record of where a single one of those pills went when he was held accountable he's now trying to escape his conviction by bringing on direct appeal and ineffective assistance of counsel claim that is grounded in an accusation of conflict of interest but as this court held in dublin sure the th amendment does not allow a disappointed clients like preparing to successfully bring hutch in after the fact attack unless he can prove and it is his burden to prove that he did not validly waive the conflict and that his attorney actively represented conflicting interests during the trial and as a result made object dibley on reasonable child decisions her parent has not carried his burden on any of those factors and as a result his th amendment claim should fail on direct appeal i'm happy to answer any questions that the panel may have on the conflict of interest it was the part of the brief that yes your honor i do have a question just even leading up to the conflict i can't understand how a text from his credit to ms castleberry who was not represented rises to the level of the government phone records from the defense attorney in the st place yes your honor the government absolutely understand that concern and it was certainly the subject of the prosecutorial misconduct that prepares attorney filed the same attorney who's now alleged to have a conflict of interest he pursued that allegation of prosecutorial misconduct even when he knew he had been accused of possible misconduct by the administrative subpoena that with issued for mr brownley cell phone records and the court concluded there were not just by way of background on what's in the record is that the witness castleberry had told the federal agents that she felt threatened and intimidated and then as a result share the text messages with the agents about alleged interference in prepares employees testifying before the grand jury the task force officer then issued an administrative subpoena it did not come through the u s attorney's office it was not a  defense attorney did the defense attorney represent muz craft is that no your honor and that's exactly the problem is that because mr brownlee was not representing the witness and yet was allegedly in encouraging the witness not to testify in the grand jury oh ok so some some ok so there is some indication that mr brownlee was encouraging to do this the text messages refer to that the witness was going into the grand jury room and particularly going into the grand jury room without representation and the recipient of that text message then told the federal agent that she had about i believe her words were threatened and intimidated it in the writer and i  i think we could move on if i had to because you were about to say i think the agent hauled off and did this administrative subpoena without any involvement by the u s attorney's office that's correct your honor development for the u s attorney's office as well just before trial and as a result we had to go through a very lengthy hearing on the morning of trial we understand that this happened through an administrative subpoena and we understand the agent's concerns in light the information that he had received from the witness the government also immediately informed the court that it would not look at the records that it would not use the records at trial and had no intention of in any way misappropriating or misusing that information in the prosecution period tested by yes your honor that is the primary basis on which prepare alleges that there was an adverse that fact by the attorney performance as a result of an alleged conflict of interest and here that allegation simply holds no water rebecca mo's a according to her affidavit was going to testify that she filled out the forms that dr prepare assigned that allowed him to acquire the drugs her complicity in his crimes does not exonerate him and it would not be objective lea reasonable to put a wife on the stand who is going to admit to criminal liability without being able to exonerate the client who is being prosecuted that is not objectively reasonable all it would do is further confirmed that dr prepare a had an accomplice to his crimes it is the doctor who received the drugs there's no dispute about that he is the d a registrant the only way he can receive the drugs is by submitting the forms to the drug supplier communicating with that drug supplier and then receiving the drugs from the drug supplier he signed to the forms any allegation that because rebecca mosaic purportedly helped him out with those forms would only co conspiracy between the two of them and it would further confirm dr prepares guilt on the exact offenses charged in the indictment it would not exonerate him this is not the case where you had a single perpetrator and one person would be taking responsibility and exonerating and other if m mosaic who is now in this is preparing had taken the stand the jury would have only further confirmed dr prepares guilt and that is the exact determination of the district court judge made when deciding whether or not the failure to call ms mosaic was in on objectively on a reasonable testified that the doctor sign the forms without reading them and that as a result the government would have been hard pressed to show intent what about that i will have to check the affidavit to see if that is specifically stated  is it does not change the fact that dr para it's still obligated both by henry signed the drug supplier and by the law to be the one to submit the forms and that comes attendant responsibility to know what those forms say and the crime is knowingly and intentionally making a material misrepresentation in those forms the government would have been able to argue that by signing the forms he read the forms or if he didn't read the forms he was willfully choosing not to which amounts to an intentional violation and that as a result of submitting those forms henry schein provided dr preparing not ms mosaic with drugs that they otherwise would not have provided because that information was material to their dispensing decision cas a question about that issue materiality so as i understand these regulations of the virginia regulations the word issue the regulations prohibited prescribing controlled substances to family members but the regulations to not prohibit prescribing and ordered ministering controlled substances to friends that appears to have been permitted under the regulations so assuming that the standard is objective materiality if in fact the doctor falsely represented that he intended we deny that on the forms that he intended to prescribe and or minister drugs friends and the problem here is that the timeline is at some point ringback the doc was not married in this most sick they were maybe they were engaged but they were not married so i suppose they were considered friends during the relevant part of this time period and if that's true then why would or why would it have been object to believe immaterial to just the distributor that the doctor falsely represented that he intended to prescribe an order minister drugs to friends because that was not unlawful the so you see what i'm getting at here  were acquired by doctor prepare after the marriage the april two thousand and fourteen form which talks about whether or not dr preparer and ministers are prescribed drugs to friends predates the marriage i think by a couple of weeks but i and my understanding is that the regulations actually change over time as to whether or not friends may be properly given and minister to prescribe drugs by doctors and at the time of april two thousand and fourteen when that  form was submitted to henry shine it was against the law to to prescribe to friends under certain circumstances and so it would still have been material to henry schein under the existing regulations in two thousand and fourteen whether or not dr preparer was in ministering or prescribing to both family members and friends i believe the date of the marriage is in my brief and i was not trial counts on this case i apologize for not remembering it specifically off the top of my head but i believe it was just a matter of weeks after that  form and thereafter they were married so just so i understand you with the you don't think that any of these counts in the indictment are defective based on the the the relationship and based on the change in the regulations that because of the judge hill in the district court judge addressed this in her memorandum opinion i think she uses the word ridiculous finding it ridiculous to think that rebecca mosaic would not at least be a friend a couple weeks before their marriage such that representing to henry sign on the purchase form that he was not in minister  to a friend who would strain credulity because surely they were at least friends just before they got married because counsel can it can i ask you another question about the virginia regulations there seems to be sort of  dispute between the parties about whether they prohibit only prescribe being controlled substances or also just i didn't prescribe anything i just bought them and gave them to people what's your understanding of what the regulations prohibit and does it matter for this case it matters in particular for count sixty nine which is that they record keeping violation and only matters tangentially but there is an exception to when you must keep  records and that exception alleviates a doctor from the obligation of keeping a dispensing log or a i required record regarding the pill if he has an minister as opposed to prescribing controlled substances in the lawful course of professional practice and he's not charging his patients for those drugs so under that limited exception you would not have to keep the dispensing law dr prepare a was not practicing in the lawful course of professional practice his administration out alive what's your evidence that he was not practicing in the law whole course of medical practice yeah well the government submitted as exhibits the regulations that define what burton only testified about professional norms amid the government argued in fact against the you said october did not give an opinion about the law that's correct you're in one of your other arguments so how could you rely on dr burton now to basically be giving an opinion about that lol you're absolutely right your honor the district court properly precluded dr from drawing any legal conclusion about whether or not administering to your wife for two and a half years was outside the scope of normal professional practice but the government did submit the regulations and the law governing this very issue in lieu of having an expert witness draw that legal conclusion we were all worried about making sure we respected the bounds of an appropriate expert legal opinion so we submitted the regulations which the jury then was able to review and in combination with dr burns testimony talking about what is standard practice in the industry it is certainly the record certainly shows substantial evidence that dr burton was practicing outside the law of course and was not charging his patients for it because it has to have  medications as part of the surgeries and the all of those things would have to be met in order to satisfy the exception for the record keeping role so it's in the totality but in terms of the actual lawful course of professional practice the regulations would speak for themselves and they an exhibit but i'm sorry and i actually i'm not it's not clear to me whether it matters to the outcome of this case at all but the defense the defendant spends a lot of time saying that on their face the regulation doesn't speak to what the doctor is being charged with here which is buying the pills and then administering them to someone it only precludes prescribe being controlled substances you know writing the prescription and sending the person to a pharmacy and that didn't happen here so  is that wrong is that reading of the regulation incorrect or does it does not matter i don't think it matters you are there there were multiple regulations submitted some that govern prescriptions and some that govern and ministration of controlled substances with respect to the exception to the record keeping obligation that applied only to the administration of controlled substances as relevant to this case and that would require doctor prepare controlled substances as part of a lawful course of professional practice and the jury's verdict implies if not explicitly states that his practice prescribe could administer drugs to family members in this case his wife then why would that matter well the way that the witness from henry schein explained that it did matter to them they asked the question of all of their doctors so that they can then cross reference the answer to that question with the applicable state regulations and the henry schein employee testified that had dr prepare and made it on that form that he was administering those drugs with wife they would not have sent them that alone is sufficient evidence to convict on counts one through sixty eight dollars it was material to henry shine and that was the essential it seems to us that that seems to suggest a subjective materiality standard because of the law objective lee allows a doctor to administer the drugs but not prescribe them then isn't the distributor imposing a more burdensome requirement in the law imposes theoretically yes and that would be absolutely permissible i mean a distributor could not provide drugs below the threshold of what the law requires but if a drug supplier wanted to have more stringent requirements than what the law requires before it distributed drugs to a doctor it would certainly be in its private right to do so here the key fact is that henry schein said that if the doctor said that he was administering the drugs to his wife they would not have sent the drugs not only because the law doesn't require it because in their view they want to have done it a but the standard in this case the one that the district court instructed on was objective materiality not subjective materiality so the fact that the distributor could you know as a matter of when we just because he was super careful about the distribution of drugs rejected such an order that doesn't mean that a reasonable and prudent person understanding what the rules and regulations required would have done the same thing i'm having trouble making the distinction here myth the material jury instruction that judge dylan gave was the traditional instruction materiality whether it's a statement that one would reasonably expect to be of concern to a reasonable and prudent person relying upon it a reasonable drug supplier like can resign knowing that there are regulations that govern the administration of controlled substances to family members would find an answer to that question to be of concern and they would then use that information to cross reference against the applicable state regulations in deciding whether or not to ship the drugs and if the drug supplier has concerns about whether or not it's illegal it is absolutely the drug suppliers right to not send the drugs that there's no legal requirement that the drug supplier provide dr perel with those drugs i mean presumably henry schein wishes to make a profit and provide drugs wherever they are legally allowed to do so but there is no affirmative obligation on the manufacturer to provide drugs if they're on a comfortable providing controlled substances to a doctor and that henry sign here on it quickly stated that had dr prepared been truthful and responding to those questions the drug supplier would not have shipped the drugs that is all that is required for proving that dr prepare attain the drugs by material misrepresentation that the question was important to him wote because we have would have to adhere to state medical board regulations on treating family and friends and how do you go about it hearing the state medical board regulation of family and friends w consult the state statute or regulation to determine what the state statute allows or perhaps and then he says so if he had checked yes to that question what would be the next step we would consult the surgeon your regulation on the treatment of family and friends for a controlled substance and then he said if the basically he said because people are say i have told me that the virginia statute prohibits this we wouldn't have shifted it but it turned out during the trial the virginia statute doesn't prohibit it and that's why we think it matters on the st the counts one through sixty eight what that statute says as to take what can i perhaps spend more time on this virginia regulation than i should have but i mean it it's titled treating him prescribe being for self and family the st section says that treating and prescribing have to be based on a bonafide practitioner patient relationship and i'm just trying to figure out why would the rule possibly be that a practitioner can't pursue a controlled substance for a family member where at least you have to go to a pharmacy and someone else has to fill the prescription and document in there will be a record but it's fine if he just wants to buy the stuff himself and give it to ns wife like it just when i look at the regulation as a whole that just seems like sort of an absurd not absurd but and perhaps likely counter intuitive reading and his or no is a good case law on this is that if the whole case turns on this where is the case law why isn't what's going on here that's occurred to me to your honor i would say that in general it looks to me like they're sort of less that's required for administering and i'm not a medical professional and i intuitively don't know why that would be true but in terms of record keeping and things like that that seems to be consistent i can certainly provide supplemental briefing on it i think for the purpose of this trial it sort of matters what was presented and what was argued and the district court seemed to concede that yes the statute only prohibits administering so and the expert for the government also sort of conceded the same once it was presented to him so i think that's sort of what we're left with in this case the other thing i wanted to quick point out before my time runs out is that the preparer in her affidavit she said i would have testified that i always provided frank the forms and he signed them without reading because he trusted that they had been correctly filled out by me i would have testified that there was never an occasion where i observed frame to read over the medication order forms personally before executing them with the signature on my assurance to him that they were accurately filled out in part those are the two points i wanted to make in rebuttal so if there are any other no other questions from the court our colleagues have any additional questions oh ok well thank you very much for your arguments here this morning the case was able to argue that traditionally we would come down from the bench and and shake your hands and thank you personally obviously we can't do that but we're doing so virtually so except a virtual handshake and of the panel that's the best we can do under the circumstances but know that we really appreciate your being here this morning in ordering this case and presenting it to the panel so thank you very very much thank you