proceed thank you your honor good morning your honors learned counsel for the government my name's david j bernstein i'm here on behalf of sylvia walter easy seated to my left as my assistant made please the court the government would have you believe that this is a garden variety ineffective assistance of counsel plain and shouldn't even be before this august body it should be the subject of a twenty to fifty five back in the district court that couldn't be further from the truth your honour's this is a very unique situation there is a direct conflict certainly between coun and this walter easy but the conflict was created by the trial court this walter easy was being represented by an attorney named peter schwartz he had a lot of trouble getting ready for trial he requested one continuance along with the government a second joint continuance with the government a third joint continuance with the government and but by the time he got to the fourth continu e ms walter easy had come to the conclusion that he was not up to the task and she fired him and she hired christopher darden and all men the callee at the first appearance  mr swarth had submitted a document for substitution of counsel and at the very same time just in case that motion was than i he submitted another motion for continuance of ninety days mr kelly and mr darden are before the court and that they've just come on board they know virtually nothing about the case and they are not ready to go so the trial judge gave them a brief continu knew kelly was suffering from the aftereffects of a serious accident and she was in chronic pain and had been told by her doctor that she needed surgery and she was putting off the surgery so that she could work on this case and on february eighteenth i believe it was they came before the board does it make any difference that the district court  the attempt at the last minute continuance as a delaying tactic and the court emphasized look we are not ready don't try the case do that do those factual findings and the district courts perspective as to what was going on in the attempts to push this case beyond what counsel had represented previously because when they came into the case there were representations made that they would be ready for trial and so the court permitted the continuance and then on the eve of trial they tried to push it off so to what extent we looked at those factual findings made by the district court well that that's an excellent question the the court did in fact say on a couple of occasions that he believes that mr schwar continuances were there were tours but he never had a hearing on it he never made findings of fact he just basically jumped to a conclusion that it was his gut instinct that m your was still tours and at some point why would you need to have a hearing on i'm sorry i would you need to have a hearing on that i mean it happens routinely it seems to me and district courts where the trial judge can considerations that need to be considered when when the question of a continuance is before the court we have nothing in the record that that this this trial  actually observed what was required by studly would the court like me to go into those can be i guess i'm more interested in a practical question because this is an issue faced by trial judges all the time where there's a last minute change of counsel and it happens once or twice or three times at what point does the does the trial court have the right to go forward and just say we're going to try this case well your honor our position is that the most important consideration before the court was the power once sixth amendment rights the court had concerns about moving its calendar forward the court had concerns about reimbursing the government for the jury that had been impaneled why aren't those legitimate concerns that the district court should happen in this case started with a trial and fourteen and were eight months later three the court had granted three continuances on the day the very day of trial they come in and ask for yet another continuance well judge jury is there in that you know he has to be paid why aren't these considerations the trial court legitimately has and can make decisions on well basically judge the the court can do whatever it likes well i should have added appropriately made but but the question is is this court needed to do a balancing test the court needed to balance the considerations of the amount of money and the moving its trial but these very counsel had promised the court in february that they would be writing and that was the basis on which the court let them substitute and they said they would be right they come you know the day of trial and ask for more time and ultimately the judge does get them he gives them at least two days and i realize that you're concerned about the choice that the trial court put him to but they had the option of getting a longer a german he was given two days to get familiar with that portion of the case that his colleague contended she couldn't prepare ok judge basically all were hired about ten days before they had to go to trial and there were twenty three thousand pages of discovery that were given to them swarth hadn't gone through it he was not able to hand off the case in any state of preparation tell the court they could be ready when they came in they told the court that they could be ready that's because well first of all judge at that it wasn't true i mean did they misrepresent but i don't think they misrepresented judge i think they were overambitious and overly optimistic about what they would be able to accomplish in a short period of time and then suddenly they found that they were faced with twenty three thousand pages and while the government might say we only had seventy six exhibits well if those exhibits consisted of hundreds of pages it was a tremendous job that in the kavli was completely candid with the court and she said judge we are not ready we can not go forward and then the judge turned his attention to mr darden i mr gordon said wait a minute wait a minute wait a minute i have other considerations i have a family to feed i think you know you know for he was he was asking for the continuance the judge was continue w continuing to refuse and they break they began to bargain the judge said i'll give you a continuance staple twenty eight but only if you were greedy pay for this jury and to pay the costs of the government's witness and as this court knows so well if there's a sanction over the amount of one thousand dollars there has to be a voluntary reporting to the california state bar and let's before you probability that the verdict would have been different in light of the strength of the evidence presented by the government yes there absolutely was a reason a very reasonable probability mr darden was not prepared he had no verdict in the case well to some degree your honor he didn't know he needed to do investigation and didn't have the opportunity to do it but he did say that mr schwarz had done nothing he had subpoenaed witnesses he hadn't done that the zisha and he hadn't prepared any paperwork he hadn't worked on on jury charges nothing so so they came into the case and they really didn't know what they were stepping into but at this point donna may i reserve what's left of my time for a bottle and so the question will i really want to know what your answer is to this question of prejudice because you said he did nothing and so therefore he didn't know if there could be something out there that's helpful enough to change the verdict but at this point you're on appeal don't you have to point to an error by counsel and say if only he reached out to this particular witness she would have come into court and would testify to this and that's how it would have changed the verdict that's the second part that's missing from the arguments in the police may answer that  and tried to bully him into going to going to try it all and that's what happened then they went to trial when we already knew why and the court already knew based on what mission that kelly had told him that they weren't not ready what is the nature of the cut you could say there was a conflict of interest here would are you contending that this was under actual conflict where prejudice is presumed or are you not making that argument i am making that argument judge it was an actual conflict and prejudice was presumed because mr darden was afraid that he was going to get a sanction that was going to be reported to the bar and it would hurt his career and so so basically under that level of  it please the court ellen meltzer for the united states contrary to what mr bernstein just stated there was no actual conflict of interest in this case that was created by the district court judge why not the district court judge put the put it to counsel either you go to trial in effect i'm prepared or you know you're going to have to pay this you face sanction i give you an adjournment which would be helpful to your client but it's going to hurt you you're going to have to pay for the jury and you face a potential second sanction so why isn't that a conflict position that council was placed in by the court itself because your suggestion is that every single time that the court decides to impose fees or costs or some type of sanctions then that attorney can no longer be involved in the case and i don't think that that's not make a difference because initially mr jordan said that he would accept the clause and would go you know would have to continue a sort of talking about his family i mean that was that's certainly  said potential wife an actual at that moment he's given the choice the choice between his own welfare as a lawyer and his clients because a conflict only becomes an actual conflict when there's an adverse effect so the adverse effect is he could have gotten a continuance where he could have been more prepared and he chose not to your honor he was a lot more prepared than defense counsel has represented contrary to what they represent helli submitted her two sets of her own instructions under docket entry one twenty nine and docket entry one so you're saying the claim before the judge that they want ready was one that was disingenuous i don't think it was disingenuous your honor i think that on march tenth when they came into court and thought that they were going to proceed for trial mr darkman and this may kelly were certainly not as prepared as they could have been or they might have been or they would have liked to be present she was and despite the representations that she had made to the court that she can sit for more than thirty minutes and she was in dire pain she went forward she tried the case she demands for any type of accommodations and the case preceded it a lot of the cross examination in the case with extremely skillful mr dart is a very talented lawyer they did proceed with openings with closings making objections many of which were sustained misnamed kelly prior to the trial starting did oppose several of the government's motions in limine e she submitted of her own it's not like they did absolutely nothing major incident during the trial if i might interrupt in their brief here's what they say throughout the trial there is substantial evidence of counsel's unpreparedness to proceed with trial including but not limited to not having reviewed all the government's exhibits not having prepared to ensure instructions failure to complete their powerpoint presentation and having it stricken failing to secure it tennis of witnesses of trial and failing to provide the government with a list of experts and but the fact is in terms of what judge when they asked before they have prejudice they haven't made any showing either in the lower court of to this court that they would have done anything differently if they had more time to prepare well sounds like they would have finished their powerpoint presentation that was for closing argument around and i don't know how effective something like that is the only way sure that might have been use them might have they might have an expert witness i don't know what i've never seen an expert witness in any medicare fraud case like this that that was effective in any way the government's whatever you some prejudice presumed in this case scuse me why shouldn't prejudice be presumed is the supreme court made very clear and make ins the tailor bath lower court should not extend kyler a sullivan to cases  and joint representation and if there's any case where a chimp be standing where the government's evidence is overwhelming it's this case where of the inappropriate your honor the court in macon stated unambiguously that actually hold that prejudice could be presumed only in joint representation it was was that the holding of that case it left open the question whether prejudice could be presumed and other types of cases correct love of the joint establish or even supported its extension beyond joint representation cases and we're not arguing that miss did that miss wall to raise a would never have a forum for her complaints about analysis well let's assume for the sake of argument just hypothetically that we were to hold that prejudice would be presumed it would be the government's response as the next step in the analysis is at the end of the story company as scoring gauge in terms of paying kickbacks to recruiters to have medicare beneficiaries who had no medical necessity for wheelchair except them to the fact that not only was she paying recruiters she was paying doctors kickbacks peak you know three point five million dollars were built to medicare for not only para wheelchairs but other types of durable medical equipment that was not necessary and i think the government's evidence on that was absolutely overwhelming she admitted that she was familiar with medicare regulations that she had taken courses that she had training and she knew that she could not pay kick that scene yet she was paying them under the guise of what she called the commission salary she had a seat where she listed how much would be paid for every type of me and the ones where she paid the most were for hospital beds and for wheelchairs and those are the ones where a durable medical equipment company a supplier gets the most money back from medicare i mean she knew what she was doing was wrong your honor there this is so i realize that your position is that this should be pursued in the twenty two fifty five but if we presume prejudice the government's position is that there's no prejudice because the evidence  because yes because of overwhelming evidence she saw ambulatory people at her business and then later that day or the next day a prescription would come in for a power wheelchair and  went ahead and she'd bill that to medicare it's sick she told her to liberate person mr and war that it didn't matter whether or not the pair wheelchairs didn't somebody house it didn't matter whether or not they could use them it didn't matter if it even was delivered inside the house and sometimes it was left in the right sure it was left on a wine she didn't care at all your honor she only cared in making the i take issue with the characterization of the government's the government's evidence being overwhelming at the end of the day they government basically  looked at for individuals for patients they were able to get convictions on three of them so twenty five percent of their indictment faile miss meltzer says that she charged three point five million dollars to medicare this is true but there was an agent who testified that only forty seven percent of her business was in power wheelchairs like the one i'm sitting at and there was no testimony about the other fifty three percent because the government made a motion in limine me that there could be no government attributed three point five million dollars which is everything the cheap bill to medicare during the period in question between two thousand and seven and two thousand and twelve i believe and there was no investigation there was no evidence in front of the court about what what consisted or rather what the difference between three point five and one point nine one point nine of course being the amount that was actually received by ms welter easy there look the quote never heard evidence about what the difference was between the one point evidence this particular those are in connection those arguments are really in connection with your sentencing claims correct yes and although the court had a motion  limine with regard to the trial itself there was nothing that precluded her at the sentencing phase of the trial from putting on evidence that a substantial portion of her business was legitimate correct but that's a good point your honor and i would attribute that to the fact that her way or simply want to prepare for well they had a lot of time from this point to the point of sentencing her sentencing was three months after the trial correct you can't say that the original decision of making them go to trial it in march had anything to do with how prepared they were at sentencing they took three months to figure that question out correct  they would have your honor yes and there was also other testimony that other items other than power wheelchairs with the subject of these kickbacks items that were related to beds i believe a few other items it wasn't just the power wheelchairs correct actually this case still primarily with the power wheelchairs there were i believe a few hospital beds thrown in there to but but  certainly ms worth a reason he only received one point nine million dollars from medicare there was testimony that well from one agent who said medicare pays eighty percent of whatever is bill which i don't believe that's correct but in any case there was other testimony that medicare has a schedule that they pay out for every single item so michelle to resign a new one that she was not going to testified that that medicare only pays eighty percent and and also i believe the the stench will from medicare and medicaid now what they will pay for any given item was put in evidence and finally the the judge and the probation department in the p s r apparently used the numbers in into exhibits that were placed by the government eleven and twelve which basically were in the nature of summaries created by the u s attorney's office and the judge took the number and he used it to s