hansen i guess the issue that i would like to still is hoping to start out addressing today is the choice of counsel question in this case it seems to be sort of agreed by all the party is that there was actually no conflict of interest between dr hansen and mr torres or mr robinson based on their the fact that mr kerns represented them in earlier case at this point i think everybody agrees that there was no justification for requiring waivers or for imposing any sort of taint team approach or preventing mr currents from cross examining mr torres what's the source of the statement i mean we're in the government's brief that they see that there was no crime to be fair they didn't concede but they also didn't argue that there was a conflict in any way and i just don't think there's any basis to conclude that there's any relationship between mr ruling was a sense that it left open the possibility of an th scheme approach i think if you look at the transcript mage ally seventeen hearing it's hard to read that and say that the question of whether or not there was a conflict of interest was up for  g what it said was if there is some other protests that can be agreed on by the parties by friday the friday following the hearing obviously that it might be willing to entertain that and know if there was no conflict then i don't know that any other approach could be imposed on mr burns right because if there's no conflict in the district or isn't then there's no just if it would be equally as arbitrary to say well we need a tape team or you can cross examine mr torres as it would be to say well you have to get waivers if that makes sense so what the court was very willing to discuss it further was and i think it was willing to entertain briefing on whether or not a conflict would be ameliorated by some th team approach i think that's fair yes well counsel what the court said at the end of what i can see it is who is and if i haven't heard from you by friday at nine o'clock you have attained the you would take that basically as a finding that unless somebody gives me some other authority and nobody did i'm going to find a complex and so you need to get me waivers for propose some other alternative way to deal with this complex that i'm found is that how you or you are interpreting it yes that's how we're interpreting it now i think any residual ambiguity and what the court meant was cleared up because the court in its minute order granted mr kerns is motion to really with the finding that there was a complex because yeah so ok so and so when you stated at the beginning of the of the argument i thought you stated that you didn't think anybody contested that there was a conflict or that there are you saying no one contested that there was a finding no one's ari i don't think that the got with the government in its or a phrase the government in its briefing before this court did not argue that a conflict of interest exist that requiring waivers was justified you write it out ever you did however i did in the opening brief they did respond in the arguments and then we talk about that a little bit are you see i guess i'm i didn't see you cite anything really on point at all to suggest that where you've got an attorney who has represented not just a witness but a codefendant who was testifying and his piece previously represented him in a a drug crime again the government didn't really respond but i think this court has said the question is whether or not there's factual relationship between the underlying cases right so here we don't and the government didn't do a lot of the district court level to develop what the facts were of mr tourism's two thousand and case so we don't two thousand and six case that we don't know a lot but it appears to be a simple and the burden is on the government to establish the conflict because they're the ones moving produce qualification but we know from the transcript that dr hansen didn't even meet mr torres and till two thousand and fifteen which was almost a decade after the two thousand and six convection so other than the mere fact that they are drug cases i don't think there's any there's nothing that links the two together i mean i think it's probably unlikely but again i don't know that the two thousand and six case involved a doctor right and to be fair i think there were twenty two thousand and six dollars cases that were sort of joined together but again the record isn't clear on that and  have case law that says you know if the only possible reason the only possible source of the information the only way that the information from the earlier case is related is sort of an impeachment or collateral matter  there's no mr kerns cross examination of mr torres couldn't have any impact on the two thousand and six he doesn't nothing about the two thousand and six case could be relevant to the cross examination it has to be materially opposite on a substantially related case right what the district court judge was knowledge that mr kern may have of the drug history of mr tories and if he were restrained in his cross examination of mr torrens because of it hearing to attorney client privilege he would he would harm fear his duty towards mr henson if he did not wasn't restrained then he would have a breach on the other side of busy mr tories and i mean the idea that mr tories could have told him things about his drug history how he did things all those sorts of things it becomes mere speculation that an attorney might later remember a fact is not sufficient to establish a conflict but it's not the rule of the model growth model one point one says there has to be a substantial relationship that's the test recognised by this court and a substantial relationship has to be a relationship about the facts i mean as you have to get to course work on what's assume and i'm not ask you to  assume for the moment then mr kerns as as the district court judge suggested short circuited the process by withdrawing before there was an actual determination made as to whether he is that a waiver my position would be because mr kerns went so far out to his way to say that he was intending not to waive that it shouldn't be a waiver in this case but i do you take your point i just think that mr current you know i'm doing this because you're making me do it your honor well what difference does it make if the objective fact is not that that's what happen whether a he was to say in his pleading doesn't change reality it's not like sure the court could have kept him in but if he had already indicated that he was going to withdraw he's withdrawn i mean what else is there to visit to the court also granted it for the reason stated in the july th here without any and those reasons could be that it had not made a ruling they asked him to do something and he didn't do it ask them to present authority asked him present a waiver asked him to explore other options including a painting none of those words the rug i understand what you're on a point my point is that each of those options if there was no lacked would themselves have been arbitrary right they get their requiring waivers would have been arbitrary and if this does the spirit there's no conflict obviously but if there determination was arbitrary or wrong then and then mr kerns did not even need to attempt to comply with it i think he did attempt to comply he tried to get the waivers he couldn't get the money to any of the other that there is no evidence on the record that he tried to reach an agreement with the government i don't know if there is discussions of the government about the taint team it's just not something that was on the record i would if possible like to reserve the last two i would like to start with five main points on issue one that we think are dispositive of issue one and there are factual points the st point is that counsel was never disqualified ever that's uncontested number two the nd point is that there was never a finding by the district court that there was an irreconcilable d d conflict that is not contested point number three it is not contested that the district court has never ordered the imposition of any condition on counsel's representation of defend it some point under three of finding of a conflict by itself does not impose any condition on the representation sub four hundred and three the district court never ordered counsel to obtain conflict waivers as a condition of representation point four and this is very important that it's overlooked motion for new trial he says standby counsel could have easily been obtained to cross examine former client witnesses and he also says that the district court did fail to premeditate to and he said that could have been a remedy so the conflict my point for was easily where medieval and defended acknowledges this point five kelso withdrew the four the district court imposed any condition on extent that the district court imposed an arbitrary determination of conflict in other words the district court well not only was wrong but arbitrary doing so that that did any subsequent conditions i e waiver t were things that really were not things that that the defendant should be held to in terms of confined or not complying well we think that that whole postulation of the district court or the whole the whole a conflict whether or not there was an actual conflict is a red herring because the district court never made a finding of an irreconcilable conflict there's nothing about that could have that could have implicated defendants th amendment rights his  amendment rights are only implicated if the district court mates unreasonable and arbitrary qualification on the representation that can only occur if there's a order qualifying some aspect of that representation and here there was never even  a finding of a conflict d by the district court there was an advisement that was non binding and was a statement of intention the district court said it was not final the district court offered alternatives defendants admitting the district court if there were it could have it remedied easily in his words and then he would dru before any finding of conflict was made and before he pursued any alternatives the fact that whether there was a conflict or not is a red herring whether it we can argue about it that's a red herring no finding of an irreconcilable conflict was ever made on this record that's our point about that so we think it's a red herring the baiting whether there's a conflict is just it's an irrelevancy on this record because a district court never made a finding without a finding you don't have an unreasonable arbitrary interference with a right to counsel i understand the point and you've stated it emphatically but let me let me ask you to ben if there was a finding and then it was arbitrary what was was there any obligation of defense counsel to the least tried to pursue the options that were available other in other words to consider waivers in the i mean note the court said you could present additional authority which presumably me additional briefing was that was there some obligation to do something even before with wrong and no i'm asking for the assumption here that there was a finding in the finding was you can take it to be arbitrary  that'll make you feel better about it that's the assumption the court is assuming that there's an arbitrary finding a conflict that was incorrect yes and i'm asking what what obligations use there's still an obligation on the defendant counsel in that situation to do some thing in other words other than just withdraw it's my point would that would lead the dependent a defense counsel any obligation to do anything else but would draw your honor if if if the court made it let's say an incorrect conflict finding and made that final on the parties we see that that conflict fighting by itself does not impose any condition of representation on the defendant if it's not been accompanied by some d by some other see other other requirements that would serve as a remedy such as obtaining waivers or it's a team or something defended if defendant wants to pursue his th amendment rights and going to district court for abridging those rights yes he has a duty to explore alternatives to to get around the response to it all i'm asking you simply does would look to use this case ok with a certain assumption the assumption is arbitrary finding the conflict finding was arbitrary would mr current in that situation still have been obligated to say all right your honor i object to your finding i but i'm going to present you waivers and preserve my rights i've just you're finding on presenting authority or on getting the tape seen but to preserve but i but i i believe your decision was wrong i mean who would he be you know required to do something in order to save this if you other than withdraw yes that's required for a garden variety preservation of an appellate issue you can't just  in the absence of a court order and say oh the court may be withdraw or i withdraw i would drink because i thought the court might order something in the future that the court never even ordered on the record but you have to preserve a issue and you do that by letting other authority perhaps counsel had given all the authority you had all right so you give me the waivers and it could and pascal couldn't get a waiver by nine o'clock and didn't have any further authority then it understood the counsel understood that the judge was going to find in their record file becomes like i'm not sure how much more counsel needed if you can get a waiver and let's say he can't and you don't have any other thorpey and he's already given it to the court i'm going to find inter matter whether and waits for the court to issue the formal one is a matter well it matters because we draw it without a formal order equals a voluntary equals a voluntary withdraw and you cannot predicate a sixty minute violation when you voluntarily withdraw from the case that that they're saying how voluntary is that i guess what i'm saying when he said i've given you all my authority owns are you do you should you i'm telling you what i got and told you why i don't think there's a conflict you said there as i don't have any further a voluntary there's no evidence that it wasn't voluntary he says it's voluntary number two in the passives from the district court that your honor cites the district court in that very same passage says d by nine o'clock i intend to find this intent is not in order it's not final and then the court said unless the parties can agree on some other approach so that put the defendant on notice that there was there's this is not final that made it explicitly on final and then the court suggested a tainting approach which made it even more explicitly non final so he could not have walked away from that interaction thinking if there was any final order there wasn't it was explicitly non final and but but he he wanted to he wanted to create this structural point i'll be called be brief number one he's not entitled to review on this issue the district court the district court properly instructed the jury on an actual knowledge issue he doesn't contest it on appeal this court's cases beholden casing the coro say you're not entitled to review so he's not entitled to review rd my rd point and the court asked about the nd the rd point is we have proof the actual knowledge the jury was properly instructed on the actual knowledge we proved it up so any defendant was number he was told that his patients were actually diverting their medications he wrote ok prescriptions without even seeing patients without even without even seeing them you wrote he wrote prescriptions he sent text messages to his because basically showing that he actually thought they were diverting him patting their supplies for resale he didn't perform any physical advantage on his patients or very limited physical exams and he did not use any drug urine screens with all this what we're saying is and this is this this conduct is comparable to the conduct referenced in the di leo case the th circuit case that we reference for the deliberate ignorance obstruction and what this shows is that he a choice of consecration i didn't see any condone or costing any case law on the government's brief and i certainly haven't run across a case that says formal disqualification is necessary to preserve a choice of counsel issue and it seems to me not entirely uncommon that at least you know in the sort of case where a defense attorney asked for a continuance to accommodate his trial schedule right and the district court denies that continuance defense attorney was draws and no one says well the choice of counsel issue wasn't preserved because the defense attorney didn't do more to maybe accommodate that trial versus the other one right it seems to me that as long as the defense attorney is moving to withdraw and it's he's doing so in response to the district court's order then the choice of counsel issue should be preserved but the question is whether there was an order to get right and i understand that's our right and i understand that assumes that i just but also and this was in connection with the brief question of remedy and the court even if we assume the court made a conflict determination in order to fully preserve this wouldn't have to say at reasoning that says that when the court makes a ruling that you just think it's crazy that you can just say all right well i'm out of here i mean that you know there's nothing else for me to do and i'll just i'll just take it up on appeal don't you have to make sure that there's that you've locked in your position if i can just answer your question i realize that i hope or it's my position that if the court said to the court the conditions that the court laid out  were get the waivers do they find a solution with the government that allows for a teen team figure something out by nine o'clock and if you haven't i'm going to find an irreconcilable conflict and i think by setting the conditions  the fact that they didn't obtain by nine o'clock on friday for whatever reason it sort of exhausted all of his obligations i guess is my explanation there for all we know the government just didn't agree to the teen team but we oh well we inappropriateness of the court imposing the waiver obligation and so we could have done these other things your honor but you know we didn't have a chance so we didn't go that those things were on the table when they were viable because the defendant told us they were understand that i don't think that the statement that attained team could be obtained objectively easily i don't think says that mr kearns intentionally chose not to do so i think that's a different question as a factual matter