dolan for the parents jennifer choi antonio and we are now and charles dial good morning ma'am please the court we have one of those instances in the last here where the easiest remedy is also the correct one and that's to send this back to the district court by holding the provisions of the sea change that i've challenged unconstitutional and require congress to do they said they were  choice case you made it very clear that you weren't complaining about any ineffectiveness in front of the district court so and as i read all of your briefs across i don't see any argument that you believe any of your college clients suffered any kind of detrimental something happened to them in appropriately as a result of the way in which the c g a funds are administered by the central district of ken so if the court goes ahead and accepts the government if is that correct if the court goes ahead is it correct that you're not complaining about anything with respect to your clients no that's not correct no that's not going to be if what is the what is the defect or what is the problem that your clients suffered as a result of the way in which the central district of california administers the c g a program the problem is that we'll never know on the well that's not any answer we will never know on the current record because the court is so intimately and i'm not unsympathetic to the complaints you have about the way in which the central district administer the c program i read and many of us on the circuit judges have sat as in the role of having to approve and sign off on amount over the statutory max of ten thousand dollars and for years i have read and considered all of those applications so i'm sure i have some familiarity with the system but i want you and i'm not unsympathetic to what c j counsel have to go through and the limits and the restrictive amounts that are paid to c j counsel and all you have to do but i'm trying to figure out how that all relates to these class these defendants i think that was about three minutes of the time an argument to the court consolidated down from thirty where the civil case answered my question if if the court accepts the government's invitation to go down the ineffectiveness assistance of counsel route then you set precedent where any constitutional violation can be swept over by  a problem a structural problem with a lack of impartiality in the court itself is that right i have not raised that issue i never have raised that issue ok ok so the argument is that the judge was biased yes the argument is that under the current structure that court is necessarily partial yes ok so what's your men along this line my strongest argument is that we can never now take a look at the sentencing calling to you trying to call those structural error that's exactly what i've argued the entire time from the very beginning and that's why any individual prejudice in these cases although i'm happy to get to that is irrelevant and that's the fundamental problem because we can never know that is the person's fundamental problem of structural merits just like if somebody doesn't strongest argument that we should find just not by us so if we take a look at the sentencing for example we've got guidelines arguments i submitted judge quinn's harvard law review analysis that the guidelines are median four point five times higher than they should be based on community sentence sentiment which congress directed the united states sensing commission to take into account to fashion the guidelines three and a half decades ago and they totally ignored ok i've got that and then that's two hundred fifty pages worth of analysis and statistics and so on and so forth the government puts in one citation in support of heavy sentences an article from the sacramento bee and that was in the choi case so we look at this and we say did the defense really go in on equal footing did it did i as defense counsel did i really receive the same degree of respect and did my arguments receive the same degree of consideration that the government did can we say on these records that the court impartially analyzed these cases and delivered the correct sentence according to judge quinn's analysis know all of the clients would currently be out of jail the sentences are way too high but again because we're talking about structural error i don't need to show individual prejudice but to the extent that i do that's it now if we do  to you know push this into an ineffective assistance of analysis situation like the government's been urging to do the whole time then if you think about it the actual ineffectiveness of ineffectiveness claim is not to me it's to the court because the court is controlling what the defense does and decides what the defense should do and what the defense should do what's compensable what's not compensable and so on and so forth and i have to tell you i don't speak for anyone else on the panel i'm not i'm no longer on the panel as you know they picked me off because i called them out on all this but every time i sat down every time i thought geez i wonder if judge fisher is going to pay me for this i wonder if i'm you know i wonder if i'm going to get paid and unlike any other you know legal representation right might have civil remedies the judiciary and i i don't think it's malice but the judicia bias is not a function of the judge having a financial interest right so we have that too i mean the government has sort of swept over that judge judge fisher astonishingly found in her ruling from the bench that she had no conflict she didn't bother to get do any analysis as some of the judge just below didn't on my motion to preclude for the prosecution or to dismiss what she said oh no i don't have any financial interest in the particular outcome of this case but i think that really misapprehensions by inappropriately narrowing what you what financial interest is i've put in extensive evidence about the legislation we were supposed to get a six dollars i don't want to make this about money it's not about money but if you want to ask that question you know we were supposed to get a six dollars an hour raise that they were trying to push through the judicial conference of the united states for a decade it was supposed to be thirteen dollars to bring it up to levels that they would have been ot that were authorized in the mid hundred eighty s it was finally reduced to six dollars that was one point one million the judiciary failed to push that through congress while getting a hundred and thirty three million dollars out of the same pot for their own salaries and expenses so to the extent that and finally judge fisher who said well that's not a problem ultimately concluded in the ad hoc committee to review the c j s report which i've submitted pursuant to a twenty eight jail letter that the government challenges but i didn't know how to put it in there she's co author of report that draws that please the court consuela would head on behalf of the united states the fatal flaw in all three of these appeals is the one your honor judge paez noted at the beginning and that their cases the litigation here is between those three appellate and the united states as a prosecuting agency this is not the forum in which to address quote structural errors lawyer you know the rex up of summits of the bill for maybe fifty thousand dollars in the central district through all its administrative internal workings that's just too much we're cutting that the fifty thousand we're getting at the twenty five thousand to fifty percent reduction that would have to be how does does the ever any way in which one judge's order it is a pretty c j a case but whatever the when again the lawyer would have the remedy would have to exist in a form in which the lawyer is looking at it more broadly to the extent you just have another question let me ask you this i guess suppose that you know one of the documents i read there was some some and some policy statements about expert and it was denied and it was really important i gather they could appeal that on direct appeal the there's a reason the defendant could could because he didn't get a  did his fifth or sixth amendment rights were violated by the denial of the expert and the fairness of his lead his trial or sentencing proceeding was affected so the other a whole series of cases in this court which guilty pleas they each received very favorable sentences there's no claim the missed all ones representation fell below an object a standard of reasonable miss no claim of any prejudice from her representation is no no dispute that these defendants receive procedural correctness in their sentencing or that they receive substance simply reasonable sentences so these defendants on these was no request to recuse and in any case other than the doyle case now to my question i'm going to do the same thing this is a yes or no answer because i just need to sort of to corral your argument seems to be straying from what she's really fairly race whether it's m that's a different matter and i struggle to find a claim of a of judicial bias here but it but just for starters she's not raising strickland and if she had about the claim of digital bias she wouldn't need so prejudiced would she if she had a claim of judicial bias th  and i can explain that a little more because there's there's no there's no way in which any of these judges in appropriately injected themselves into the proceedings when ever miss dolan was asked that question she  certified that that was not the case in the angry on ok she certified in the plea agreement that there had been no interference from the c j a committee in in the case and that despite the claims of the discovery demand letter should have been able to effectively represent the there's a standing question here yes do you still stand by the argument absolutely still stand by that i think the standing argument and the argument on the merits kind of converge in this case because each of the claims she made in the district court for relief such as a continuance a stay an injunction would require a showing of prejudice all over you interpret those claims or if you just interpret this that she was asking for a stay or was asking for a continu and we know what our standard review is on that but certainly isn't incarceration for these defendants enough to give this court stand i  mean if the district court abuses discretion in not granting a continuance to his whole c j matter in dispute got resolved if i said if ok wouldn't that in and of itself since these defendants are incarcerated when that be enough the equate to stand it when it will injury in fact one i don't think so in this case one of the elements for a continuance is the continuance and they didn't none of the the defendants claimed any prejudice from denial of the continuance none of them claimed any injury to them from the supposedly bad operation of the c j and none claimed any causal connection of any provisions of the c j to them well if you were our position and had the right this opinion supporting the side of the united states how would you write it that up this is a these are three appeals in which council is attempting to litigate grievances that she and maybe many c j a panel lawyers have with the system but the defendants in these appeals have have not alleged any cognize of the injury to them and have not alleged any prejudice is at them why doesn't that just result in  saying there's no constitutional there's no injury factor issues i think the court can certainly decide the case on either ground the factual underpinnings for both are the the conceptual the legal framework is slightly different in the two but but ultimately the that factually determinative of matter here is that none of these appellants have alleged that anything bad happened to them in these cases they received more effective representation they were received a a fair proceeding and a fair of the argument the my clients did articulate specific injury to them both structural and individual error we're talking about a situation and i understand it's an intractable one but we're talking about a situation that everyone has known has been broken since one thousand seventy the prado committee which i cited in my papers found in  ninety three that we have a fundamental structural problem that needs to be remedied twenty five years later the ad hoc committee's report says we reluctantly it starts out saying we reluctantly have to draw the same conclusion and not only that but the judiciary doesn't even have data to support the one billion dollars that it spends on the c j program what's going on here and so my point is that at this point if my clients don't have a constitutional claim then the