well now here united states versus mccormick that morning good morning may please the court my name is jesse segal i represent charles mccormick mccormick is currently serving three concurrent sentences of seventy seven months and i'll note that i am neither forty n or forty one years old so it is just go ahead i would really you probably not in the final analysis but it is what it is this court held in easy versus and koski if certain omissions cannot be explained convincingly as resulting from a sound trial strategy but instead arose from oversight careless ineptitude or laziness that the court would find the quality of representation sufficiently deficient to find ineffective assistance of counsel mr siegel i haven't had that many criminal trials but even i have had think judge that that's absolutely correct that there are circumstances in which that is a reasonable trial strategy certainly where what the defense counsel is conceding are crimes that are of lesser significance with lesser sentencing exposure than the ones he's not conceding in this instance there's two points to be made first of all when defense counsel conceded the the two specific sales he was pleased conceding to charges of violations of section eight hundred eight forty one b one c the conspiracy charge was no more serious than that so he was essentially the benefit to him or to his clients in doing that would have been limited to  determination subsequently of the quantity of drugs to it for which is client was responsible i take it that the reason that he did it was because he wanted to build credibility with the jury i that that certainly would appear to be the case but the question is what is he going to get out of it so he will have credibility so what's the argument that he's then going to drive home with this enhanced credibility the evidence of the sale is he's him you know it looks startlingly like him but it's not him so the question of credibility makes a great deal of sense and him but what his lawyer said was look ok he did this but where's the proof on the federal side with regard to the conspiracy and and these are maybe there's stuff about that he bought drugs from the federal c i but there's no proof that these are all part of a chain that then ends up being distributed and so therefore he's responsible for all that that seems like you know sometimes you don't have the law or the facts on your side and you're left with trickery and to see it as my law professor once told me but so he you know this is your only got so much cloth to make the suit of clothes with i mean he's in a rock is between a rock and a hard place as now there's no question about it judge the reality is i've done far more trial cases than i have appeal cases so i'm well familiar with then there mr siegel i have been  but you know in this case he did more than simply can see that that was his client who had done those sales what he also did was he valve which for the way the schenectady police department conspiracy in the state court it wasn't a question of being in the state court that know what was he charged with were there state charges that arose out of the schenectady pleas work that that state charges that charge him with conspiracy not that i am aware of the feds then use both the state activity and the and the other activity that they had to build the conspiracy and the forty one claims right that is correct so mr maccormack could have been convicted of either a conspiracy involving this guy simmons who was the subject of the f b i investigation or he could have been convicted of conspiracy working with this fellow bones with regard to the sales to the states  i and so when he vouched for the way the schenectady police department had gone about its business he essentially credited their investigation credit did that and actually the state  the handler of the c i provided crucial testimony in this case because he said the later on on july eighth two thousand and fourteen after the first of those two sales when he was d briefing the i he claims that the c i gets a phone call from mr mccormick saying in which mr maccormack provides the phone number for this fellow bones basically putting the final nail in the coffin of a conspiracy charge there so if nothing else defense counsel had to attack that testimony and i ask you just a quick procedural question as i don't watch time  his lawyer is there is certain that his lawyer had the mccormick's approval of this he does assert that and that's that's the extent of the record at this point right in that and so my next question is isn't this better left to collateral review than opposed on direct appeal because then you could develop the record as to why he did it why the tourney did it and and flush out what it doesn't appear here isn't any kind of argument about prejudice other the fact that he was convicted  that's certainly one evan you the court could take i would believe that the court could also simply remain the case to the district court for fact finding and that could be included there ok thank you thank you substantial likelihood of a different outcome had his attorney not made this concession in his closing argument and the evidence of of all three charges was was again overwhelming he had the testimon mccormick and bones were known to work together he twice witnessed bones in mccormick pooling their money he traveled with mccormack and bones and fats to rutland vermont to sell crack you have audio calls from jail in two thousand and fifteen where mccormick indicates that bones has access to mccormick's phone numbers so i think you can decide this underactive peel on the prejudiced prong i think also you can decide that this was  reasonable strategy as the court has noted he was he was between a rock and a hard place here his concession and or large and starting some ation was intended to basically defuse the evidence that was on the videotape and he was trying to gain credibility to say look i will forthrightly acknowledge what the video shows but it does not show what the government claims it also shows which is a conspiracy between bones and  as to the two substantive counts and so by trying to gain the the jury's trust and say look i'm not going to deny what it shows i think he is trying to put himself in a position to to say that does not necessarily show conspiracy and bones far as what the purpose of doing that was ultimately i think i think he was he was trying to reduce the conduct of convection to two small sails to try to minimize the exposure of his client perhaps at government's you know the position the government sentencing would be that this is all relevant conduct regardless of the conspiracy but i think in the post booker era you know trying to minimize your client's conduct to down to two subsets of sales makes sense because the and that you gain some traction at sentencing if you read the sentencing transcript the judge was pondering the issue of whether he should include the conspiracy amounts ultimately decided it would come in because as a it once decide i want to i mean a very down because i think in reality he's really only involved in these two small sales as part of a conspiracy you know i i i can minimize that and so he also departs down of the criminal history category so there was there is some effect here i think it's not unreasonable for the attorney to say look i'm dealt this this very difficult case i'm going to try to minimize my con my my client's criminal culpability as much as possible  argued expressly that sitting next to a mechanic sitting next to bones not an evidence of conspiracy and he went after the the federal confidential informants very hard in cross examination he did a credible job here this is not a case where his his conduct fell below a reasonable standard unless there's any other questions i will thank you very well you were but thank you just briefly first will my colleague refers to conceding the less serious counts and that's just a characterization they disagree with isn't it a fact that what was conceded is something they could not reasonably have been denied i mean that's right but they're not less serious that's what that was my point he conceded two counts that were not less serious than the one that ostensibly he was contesting but conspiracy count could could bring in its train all kinds of other quantities and he sed on the on the doings of the coconspirators yes but once again as as the government argues that might have come in as relevant conduct even had he beaten the conspiracy might have it might have but you know try and you're playing odds true the other thing is i think you have to look at the context in which defense counsel formulated his strategy and the context is that he in his own words did not understand that his client was vulnerable to being convicted of conspiracy for conspiring with this fellow named bones he thought the only viable conspiracy charge was the one involving mr mccormick and his supplier this guy simmons so that his entire strategy was directed towards discrediting that he in fact did a little bit of decent cross examination that might have argued that there was only a buyer seller relationship between mr mccormick and  we might note that this in fact the case because my understand that in in some nation he says maybe i had a son so there are these the big time conspirators working together and stuff like the government claiming the bundesbank conspirators well at that point is winging it because in his own words he says in told the prosecutor stood up and began his his son mation i didn't even know that they were arguing the theory that my client had conspired with bones and as a matter of fact so his entire trial strategy had been oblivious to that fact and it's consistent with everything sentencing he even says that sentencing i didn't even realize until some asians that the potential coconspirator was bones and that's the context in which he decides to concede not only the sales but also vouch for the schenectady police departments job thank you thank you both