request and then subsequently of course dr perry signed up on this that stipulation which was signed and entered i believe almost three months later so he did he did sign the problem i have with come later i understand of cases along that line however the problem i have with this particular stimulation is that there is nothing in the record of the june first proceeding that would support the findings so if you have for example if the district court judge had made inquiries on june first for example inquiring why is this case complex what is it about the nature of this prosecution that makes it a complex case are there any novel had been made along those lines followed by findings later on i will be standing here before you today and making this argument the problem with the findings based on stipulation of counsel which were filed nearly three months i can say that having said that i often encounter medical fraud cases in the context of the medical board disciplinary proceedings and i can tell you that there's nothing extraordinarily complex about this case nothing uniquely complex about it whatsoever the usual run of the mill medicare fraud cases always involve an allegation that the physician has rendered some services which were not medically indicated  authorized medical equipment which was not medically indicated it was nothing unusual inherently complex about it i understand that there are other allegations that dr perry misrepresented matters during the course of  quite clear to me why i think dr perry retained private counsel at that point i think that's what the record indicates your client you need to change yes he made a change from nick liason to another counsel but when  counsel in an uncomfortable position to do that but certainly i don't see any bar to that kind of motion even when even when it's the attorney who has requested the containers in the first place and this is after a verdict i would not have characterized it as a futile gesture i think it would have been a pyrrhic victory at all there was some tangible benefit to be derived from making this motion when you're a defendant facing multiple counts and you let me five of them i think you transcript of the proceedings for the day it's very briefly that mr brooklier appearance and request permission to substitute and the district court is going to permission granted only after the commission is granted his or discussion dwell on that one but the other one i think it's significant and that is that mr brooklier himself had been prosecuted criminally by the stealth thing agency that's prosecuting dr perry and i think the district court what happened with this record is it took a very narrow for purposes of our conflict of interest he was still laboring under criminal sanctions in the sense that he was still on probation and he had certain conditions of probation to comply with the client was a worthless well the he's still laboring under of the potential for criminal sanctions because he has obligations under his probationary grand illusion fail to comply with those obligations then the same agency that's prosecuting dr perry would be in a position to prosecute a probation violation against mr brook conviction at any rate so there was no automatic suspension but then later of course he was suspended by the medical my medical part because of the criminal conviction but the other issue and i'm going to er whatever it was and he began his commitment i need to first and again i'm going to do the math i'm not very good at it but that comes through i believe december first though the trial was and then says that for november sixteenth  under the supreme court decisions quite low versus sullivan and mechanisms of east versus taylor the defendant in order to prevail and have to show not only that there was an actual as opposed to a potential or possible conflict of interest the point i want to make though is that neither of the alleged conflicts here even if there was an actual conflict and we don't believe there was would give rise or gave rise to any adverse consequence the  allegation with respect to mr brooklier having had that criminal conviction was that he was in a halfway house there is absolutely nothing in the record to suggest that that happened we have the answers any different than any other halfway house types patents and that mr brooklier had any restrictions whatsoever in terms of his daytime work activities and there is nothing in the records of the jets that mr broccoli or thought the continu obtained a continuance because he wanted to get out from under the halfway house sentence in fact what actually happened here your honor is that mr brooklier initially said that he was going to ask for only a week to two weeks but we had agreed going into the court to ask for that that time you please to keep certain yes the three months that's what we told the court and the defendant later stipulated that that was appropriate what what what is conference when mr brooklier was substituting and he may have actually had the substitution signed and may have been entered before we leave here i don't recall the exact timing but shortly after we learned of the he haven't gotten more than seven months before he substituted yes but he was on probation he was going to face a term of supervised release and it's our contention that the fact that someone in the future in theory could violate a supervised release and might have to face a probation or supervise release revocation proceeding is is fairly speculative wouldn't give rise to an actual conflict but that's not the heart of my arguments are my argument is even if you believe that they haven't that all that he faced with this term a supervised release and that gave rise to an actual conflict that there is no adverse effect because there is nothing on the record to suggest that the fact that mr broccoli or was in a halfway house had anything to do with him asking for a continuance would in any way of the impact of his ability to represent the defendant during the daytime in court or to work at night on the case and in fact mr brooklier had appeared in court while he was in the halfway house for the defendants when he so hearing we had to discuss the conflict  length of time thing is going on and i was i was not concerned frankly because i knew contrary to what you just heard a few moments ago that this was an extremely complex case that every attorney who was getting into the case had wanted several months to prepare for trial that we had charged originally fixed separate fraud schemes we were down to four and thirty nine counts by the time mr brooklier substituted in but that that that continue which was absolutely warranted now what finding always believed that that was absolutely accurate we had something like two hundred boxes of discovery materials we had all these different fr which were not overlapping this was not i mean i it's true one of you pointed out this was a forty one it was a forty one town indictment originally but that in itself doesn't mean that a cases but what the judge would have known at the time that those findings were entered and if when met mr burkley or came into the case was it every attorney next elias and mr alexander and david evans before him we would put on evidence which were clues from doing at this stage in the proceedings that mr preclears halfway house satisfied absolutely nothing to do with his requesting the continu and he had no restrictions whatsoever on his performing legal or for the defendant or anyone else when he was in the halfway house the other conflict claim that's being raised have to do with mr brooklier fire representation of an individual named gene woods gene ward and john was it operated a health home health care center called united when they  was the home healthcare scheme had we not moved to dismiss that count gene was would have been a witness for the government to prove  john was the owner of united was the person who would always claim he had made a deal with the defendant to get the referrals exchange for the kickbacks we moved to dismiss that count long before team with not going to be a witness i brought it to the tension of court because i said there's a there's a possibility here that if we get a conviction and if we want to bring to the court's attention at sentencing  healthcare scheme the facts then there is this prior representations to think about even though mr brooklier at that point told the court that he had had no communications whatsoever with mr woods at any time having to do with a home health care scheme he knew nothing about it there were no privileged communications that he was privy to their nonetheless was a possibility that gene was was going to be a government witness at seven think mr brooklier m challenge or want to a challenge his credibility and that's how the conflict that arisen as it turned out and the judge judge hatter thought that was too speculative and we proceeded  disclosed the prior representations to dr perry and he said he had and our point though is nothing came of it in any event because if we knew at the there's no adverse consequence because they're only complaint is there is this continuous and i don't frankly i don't see how a continuance could be an adverse consequence in any event but they certainly have not set their wives on the defendant the principle point i want to make is that whether or not there was a speedy trial act of violation at the time that the continuance which is under challenge which is of june one continuance was granted because the motion to dismiss the indictment in if a license case at the time the continuance was granted we'd have a hearing about the public defender being substituted out and we're not t complex and at that hearing it was discussed that it was an extremely complex case and after hearing i had told the judge we don't want to have a conflict arise with the public defender three four five six months down the road that's what we were talking about the public defender after hearing you came out was going to ask for a continuance to december of six months or january seven months had there remain in the case the judge clearly knew it was a very come out in any hearing if he'd made a motion to dismiss the indictment and the fact is that his client signed later couple months later it's true on a step elation that's that he agreed to the continuance we wanted it would have been unthinkable for them to have to have made the motion under those circumstances and therefore we believe there was even if there was a violation there's absolutely no prejudice obligation to comply with certain terms the conditions of probation including the confinement we would know more about it we have a record that would question it out and let us know just what this ability was laboring under that time as to the adverse effect of the conflict this three as to raise a reasonable doubt now let me let me just say this this is a case where the government is claiming that the authorisation or the prescriptions issued for this these devices is verbal medical equipment lack of medical indication and the government brought in this expert witness a doctor who got on the witness stand and said i reviewed the files the patient charts and here's my opinion no medical indication for this equipment how do you defend