welcome to the th circuit i hope everyone didn't have to work too much over labor day weekend as you can see we've got judge king next to me on my right participating from houston and judge duncan and  morning may please the court my name is shane's to lars like and our represent appellant charles bounds our primary concern in this appeal is whether the trial court erroneous lee denied a motion substitute counsel for the lack of  was an unjust result yesterday and so just zeroing because your time everyone's time is limited zeroing in on that i thought judge mcbride here said that the attorney was experienced he always did communicate  and the impasse that they experience was pretrial but not much has been pointed to in trial to show that an unjust result came from this challenging relationship they had what would record evidence as to  in ability to sort of have a just result a trial would be great but i think it's due to part i think the preach trial issues impact the ultimate trial because if you look at what went on creature while it was a lack of communication and so who is the most important party in this case the defendant he holds knowledge about key witnesses evidence possible reasons to impeach credibility of the other people testifying at trial and if there's no communication how does defense counsel know what passed to go down and we know i believe it was at that last pretrial motion which are all right for trial in april th defense counsel acknowledged that the defendant had a list of witnesses that he he wanted in a complaint and see we know there's people out there but at that time trial counsel had built a barrier between him and his client saying i am only going to communicate the point with my relationship with this client while i  or any further grievance in any outbursts and i know there's defense counsel made some objections during trial but then if you look at the nature of his opening closing it was basically very brief it was my my client had a drug issue there's witnesses with serious credibility you'll find him guilty that was it that was the same as his closing he presented no witnesses he presented gave the defendant no opportunity to testify we know the defendant did what did the defendant who was fairly vocal and clearly confident speaking to judge mcbride which takes some audacity did he ever then say i have witnesses or i didn't get the discovery i was not during trial that was again that was all pre trial  i don't mean to rush you but i think your three c one point one argument at sentencing is a very difficult one so so my question there is is that issue purely one of fact and clear air review judge mcbryde used the word impede and therefore end of story we have to find that that's clear air or what is your argument because there's very little case law about a defendant who keeps saying i just want good counsel then having that fact inquiry there because yes it is clearer but this is what can you point to in the record that she was clear on that determin when you look at the nature of what i think if he gave that the lower the benefit the doubt and what his statements were that this was he was generally moved by what was going on so it was obvious that what was going on was truthful that this was not a ruse to just get to get the child a change get a different lawyer so there was he was being genuine and he believed there were genuine reasons for doesn't look like i mean understandably he just got me a patient at the end at the district judge yes that's here and he with this this is a bigger bigger issue because this case was faster and when it was from indictment to trial was six months the attorney client relationship only lasted five and basically three fifths of those months were spent locked up headbutting over discovery the lawyer had sent an e mail apparently that my client construed as accusing him of already found him being guilty and so there was this just trust from the beginning and so here we are he's going to trial with someone that tells the core i'm going to put my interests  and how can we sit lawyer said he would put his interests versus yes he made for statements i was after the the the that was the it was filed by that was in his final motion to a trop that after the grievances filed he made the four would tell me would you agree that if a defendant just kept filing last minute frivolous motions to get new counsel or even in the middle of trial that that could justify an obstruction of justice and hasn't yet so it's just a question of degree right and is the degree you can see that even in the face of application to the guidelines it says the enhancements not intended to punish the defendant for the exercise of a constitutional right it's a matter of does he believe he was trying to reasonably exercise constitutional right ok and so i think the facts here show that he was being reasonable because i think the red lights on you probably reserve time for a bottle it's a difficult issue  and speaking as a sage a panel attorney accept the fact that juries determine guilt but not quantity in federal drug cases yet i have a hard time accepting the fact that we're supposed to treat the qualities why i think this is questionable why this amount shy points to him quickly i mean number one shonda hawkins the main person with the main amounts i'll talk to her attorneys they described her to me as a young woman  drug addict who engaged in sex and various drug dealing to support her habits i doubt very seriously she engaged in jury like he did that this is probably outside the record what they told you about tell me it was outside you i mean i don't see you making a rule thirty two argument that you once you saw this enormous and handsome based on her you wanted her at the sentencing hearing did you say to the judge we need to traverse or no judge did tell just me brother i felt like she was an unreliable witness and nothing the main point that shows that she's unreliable is there was a long period of time where she was saying that belief a j for a rd making drug purchases when he was obviously a chord the records in the tara county jail on a completely unrelated had was that they said well we'll take that period of time that he was in chemistry and we will see track that from the overall of miles my position is how can they say that she is a reliable witness when it's so obvious that she's wrong on this count i mean obviously he could not be making purchases of methamphetamine while he was in turn about how much of the total amount attributed to you at st in the original p s r was impossible because of the incarceration i can't say based on it but basically the amount have been in jail it's quite remarkable there's an established body of case law about well if they were in jail when drugs are being attributed to them and my read of that case law in particular case i don't think cited but you may have seen it called rogers our court says one correction that's reasonable is just cut out the time they were in jail give the person the drugs that they weren't cut out the part up if that case law exists what's your answer to that yet that's the sole indication and in that case the douglas court said that the drug quantity estimates based solely on a single drug addict witness was not sufficiently reliable ok the difficulty there is the government hasn't heard that citation it was a year ago i know i mean the new cases come up but but we haven't read it they haven't read it and you had it a while ago that would be really helpful this is a tough issue but anyway there it is ok and so that the rd circuit you're telling us says once the probation department relies on some other rd person that's not reliable they said a single drug and belief registry rd case there were other witnesses that said he ma purchases there was only one witness that he actually made a delivery to them but out also point out that at the trial one of the witnesses said the amount listed in that the report was not accurate in addition of that three the rd father really phrygian feet the nd it was a major player in the drug business in the area they have the same name how do we know that these witnesses did not get the two of them but once it's in the he said there was no indication the information relied on in the p s so i was not real audio he thinks i got it but i haven't i didn't read your brief to be saying that the error here was that he didn't hold the rule thirty two evidentiary hearing i don't think i the rule yeah or evidence or even that it was an abuse not to have an evidentiary hearing at least a re read the brief but it's a difficult issue ok counsel thank you you probably have r very easy for them to have transported her to the courthouse to testify yet the u s attorney's office chose not to call her so that by itself is another indication of why she's not alive thank you criminal justice act issue one contends that the trial court abused its discretion in denying mr scott's request for funds to be used for investigative services as stated by the ag court when a governmental entity brings its judicial power to bear on an indigent defendant in a criminal proceeding it must take steps to assure that the defendant has a fair opportunity to present his defense clearly a key in the cases that follow it require more than a request for mere requests for services indigent requesting services must also demonstrate specific need for a basic tool in this case the trial court stated that it had never in twenty six years granted a request for investigative services while the  concedes that the right to investigative services is not warranted in many circumstances it is certainly warranted more frequently than never was the essential reason here that the attorney didn't want to go to mackenzie's house because they were security concerns that the attorney was with me and yes that's right that was one of the reasons ok that was one of the reasons there were there were other reasons what's the most salient  authority that an attorney it's utterly understandable apprehensions about going somewhere justifies appointment and payment for an investigator what's the best case that shows that that type of triggering circumstance  i believe i don't know that there are that there is one i believe williams versus stewart which is cited in my brief does make reference to a similar situation and the specific government an evidence to which those task pertained when an attorney is appointed in a criminal case that attorney undertakes to retrieve and review evidence and to interview the defendant and other witnesses in formatting  defense in this case it was apparent that witness mckenzie was a crucial witness in building a defense for mr scruggs you can see with scott's girlfriend and the person closest to him she is the person who would have been able to inform the jury of his daily activity his travel travel habits who he came in contact with and what activities he was involved she could have corroborated or rebut it fine detail of his daily activity during the relevant twenty seven month time period or confirmation of details could have exposed in accuracies in the testimony and proffer notes of other witnesses potentially leading to a different outcome for mr skaggs at trial prosecution involves a similar process is that undertak in formulating the defense that is retrieving evidence interviewing witnesses and so on but in prosecution of cases investigation techniques utilized from the inception imagine if somehow a court stripped the government of its investigative resources prosecution of cases would not be possible among the many reasons that law enforcement investigation is necessary in criminal litigation is the fact that the investigator can testify to the finding investigation at trial was counsel and on the record reflects that mckenzie refused to speak to you she insisted that you come to her house no i was not able to reach her by phone i think her account her phone was disconnected there was no indication whether or not her through her willingness to speak with me you also have nevin entry argument and just quickly on that two questions did it did did you get a mere presence instruction in this case and and then secondly i thought that there was a witness named judge who implicated your client in meeting with one of the name suppliers in the indictment there was a witness  practical restraint on articulating a more specific need in a pretrial motion wrecks party hearing is the fact that much of the information gathered at the inception of a defense investigation comes directly from the defendant those communications are of course privileged and their specific disclosure to a court even an ex parte setting is prohibited by rules of professional responsibility the government asserts that the application was too broad when in fact it was not brought it all the application was a five page document outlining specific need for an investigator  occurred at trial our contention is that leslie holiday the government's witness illegitimately invoke the th amendment after answering certain questions of the government regarding her past criminal history on direct examination but i mean just to again because time sure isn't don't we have to cut to the chase here and say under is steve did the jury still perceive your challenge your credibility not going to answer her attorney said i will answer about the fake id conviction or exposure a couple things to respond one receiver oh for steve oh davis rocha resell the cases that the government relies upon those are cases where the district court prematurely cut off cross examination without any witness invoking the th amendment i think the proper analysis fountain versus united states and that is a different standard than the standard is whether or not the defendants inability to make the inquiry created a substantial danger of prejudice right now she did have twenty prior felonies credit card abuse but that was eight years before you know what fence counsel tried to drive into is she was recently arrested before trial in fact this is just a year after the conspiracy and the government's actually asked her questions about that about the rest about methamphetamine in her hand in her car but then it went on because the government wanted to neutralize that testimony and then with defense counsel and defense counsel said well there's not just methamphetamine in your hand there was a fake i d in your car well then she invokes the th amendment so when you say in your brief dust that whole lines of questioning were foreclosed yes what's the record cite to show that you were stopped from asking about anything but the fake id or are you saying that is the error exploring more the fake id exposure well for from the record it is as i see it four defense counsel kind of presents some other questions regarding the fake id but actually i think in the context of did defense counsel ever ask a question unrelated to fake i d and the district court said you can't go there i don't think so but i'm certainly i don't see a proffer where the response was ok if we can't go there this is what we thought we would be able to explore i think that's what we see in  is the thing is with the th amendment in criminal defense counsel i mean what's the what's this witness invoke the th amendment you know the district court instead of being the receive over the other courts where it's accident it was passive here and i said well i guess she will she will follow her lawyers advice and just kind of let it go but at that point in time  what are these unrelated cases i mean what are these cases that she is pleading the th on that she is given bits and pieces to the government in order to gain a lower sentence but then it's an open question in fact i think between the government's brief and our brief we can't tell whether there are to her arrest one arrest two charges or more charges than that and the bottom line is this when you get down to the fountain case was the defendant able to test the truth of her direct examination testimony and we say no that sounds like a steve i really don't i'm not sure i'm perceiving the distinction i were you able to sufficiently show the jury her credibility test the truth but anyway well as i see that as i see the line of cases you have the fountain case where witnesses invoking the th amendment and the question is whether or not that's legitimate and our argument is it was not legitimate since she open herself up on direct including the proffer agreements with receive oh and cell and the rest you had the district court that is basically shutting down defense counsel on its own without a witness claiming the th amendment but the arguments judge king can you still hear all of us i was worried we you may be muted on our end so do you mind everything just coming through just great wonderful and we can hear you thanks for being there you have thirty minutes there is a circuit case law to support this and he's applying this enhanced meant simply because the defendant repeatedly filed motions looking for a new attorney so the short answer is none that i'm aware of the longer is and this goes to to judge duncan's question about the guideline commentary about the audience not being inappropriate where defendant has invoked a constitutional right so what we have here went far beyond simply filing motions for a new attorney that was certainly part of it the district court made extensive findings these are you can see them in multiple places in the record one is  before we get to the findings it is in your brief there were no cases cited to it that none of for three c one point one other than standard review and you're done openly indicating you'd found none that creates a worry for me in other words if there is not a single case out there where a defendant sort of repeated effort to get better counsel suddenly brings on him an enhancement because he obstructed justice my thought is then well let's look at the rule and the question i'll ask you is does enhanced meant here fit any application is it even i mean his conduct to me looks less egregious than the application of examples for where the commi you're right falsity is an element in those applications to give the best record site to where judge mcbride said your assertion was a false one yes so see that mcg judge mcbride ever said this was a lie this was false and it seems doubtful he would have said so because the attorney was concurring with it all correct your honor he but he was unaware at the time at the time the statement was made that it was false and i as you get enhanced when you do something criminal or when you lie but oh that they did go further than that what's your best to give me the closest application note to what happened here at the post publications would be a false statement that a guy and i it was a  t we contend that it was a false statement that he had when you contend that but you said to me a minute ago there were two findings where they just court said it was false can and yet i'm not hearing a record cite to either of those findings well your honor the district court's finding of the false all of the different ways in which he believed that defendant bounds was through his conduct seeking to delay the proceedings one of them was making making false statements and that you will see that hearing  actually obstructing justice but we wouldn't want to write a rule that says if a defendant's just uninformed and saying i want to testify or iraq i want to good counsel you i think you'd agree but don't agree lightly that would never triggering so we do you accept my this will be my question do you accept that we have to find the judge mcbryde found that he was lying about needing better counsel that it has to be a false statement to be an obstruction or can it just be repetitive demands that are denied and then that's really bothering the court what would you say is their case law i sort of prefer false criminal to just being obstreperous and not understanding from jail angry last minute ok i've had enough that's obstruction so i'm not aware our judgments in any case law that says i just repeatedly just repeatedly filing motions alone yes is enough to support the enhancement and we're not asking the court to hold  today ok what we have here is repeatedly filed motions that the court repeatedly found to be frivolous in addition the court found that this conflict of interest with the attorneys was something that was deliberately keep you specifically defining it again you'll find that in wanted or you know just the typical things that you see when people say look what a new attorney it was the but it was certainly the repeated buying the fact that it was a contrived grievance additionally this is something that's not  and i wonder if you could explain to me what it beyond making false statements what did what do you think judgment bride had in mind there to manipulate the right to counsel almost to use the assertion of a constitutional right strategically in order to obstruct the proceedings mr bound actually did put his hands on some of the discovery materials that i don't not through his attorney not to mr doing us and we don't know how he got it but he had a witness report because this case was built on the testimony cooperating witnesses you know by trying to make a witness and available and then asking the court to affirm on not independent ground that's a whole different world then what we're talking about which is a really difficult rule of law to construct if it's repetitive frivolous from an uninformed person who doesn't want to go to jail for life to me i don't see that as obstruction of justice if he lies manipulates contrives that seems pretty solidly in the world now if he's going to kill somebody well of course but we have to decide what mcbride attributed what conduct that he attributed the misconduct to and i think the middle you're saying exists manipulation false statement contrived those are finding judgement bridesmaid ok and so and so my argument in bringing up this other witness is not i believe that is why judgment brighton and knowing the record as he did found that it was the he was nibbling on his right to counsel that it wasn't actually about him wanting the discovery material so he could participate wholeheartedly in his own defense and at any rate judgment brought also he had been advised multiple times that no attorney was going to be able to because there was a discovery agreement with the government that no attorney was going and he had been repeatedly informed of this was going to be able to give him those discovery materials in his cell so he was aware he was made aware about on multiple occasions where i'm in the record where did you refer t attempted to kill him in prison and that when that incident happened that he was brought into another room and mr bond was standing there holding a witness statement but again we're not claiming that with the pieces for for this that he has been in particular but i do believe that  in response to judge duncan's question that i'm this is part of possibly part of what judge mcbride had in mind at least at the sentencing phase about why he will if you were writing if you were writing our opinion to a firm but to be very sensitive of defendants to are terrified they'll go to jail for life and so they are filing crazy motions how would you write the rule you would affirm judge mcbride's germination here i would you write that i think the false statements are are a key position i think that the repeated false statements to get into the court were really distinguish this case from your run of the mill case are there then it's then it's largely a factor terminations the reason i'm doubtful that they're there but you represent that they are is that the attorney never said your honor as an officer of the court we've been communicating fine this is a ruse instead the attorney seemed to validate throughout right to the end like we have a problem i can't talk to the guy he's grieving against me even i don't remember the attorney who's respected by judge mcbride saying this is that are relevant and the relationship between mr brown and his counsel changed quite a bit to the point you get to right before trial with him saying communication has broken down you know i am the best so i would be the attorney saying  made up your honor this is not true anything that there was so we don't have anything this is made up i know anything close to them report repeatedly saying that they had resolved their differences and that mr brown and mr b have counsel filed a report to judgment bright saying that he had met with bounds that they had caught that he walked away from the meeting feeling they ha they had resolved their differences that's july st but if i could if the defendant's filings are a misunderstanding that would be exactly what we would protect that isn't a lovely it's a misunderstand right storms out of the room will only fixate on this i want the discovery materials i want this government i was related to all of the defendants and downs never contested that's what he wants that he once discovered materials waiting to defendants other than him he wants all the witness statement that he wants to keep them in  and he wouldn't he never at any point during this dispute said oh no that's not really what this is about and really i just think my turn is not that smart oh i think my turn is not in on this case right this was really what it was about and downs agreed to that repeatedly at every point in  to move you to the other big issue we explored with defense counsel just because of time you can come back to this but but my concern about the drug amount attribution is one way of seeing it is oh well this happens every single drug case it's a clear error determination district courts assessed amounts this case is different though here's why but disagree with any of the following propositions the government count charges just one count a conspiracy count no substan counts then there's no four hundred and four dollars b about drug amounts there's no special verdict asking the jury to find drug amount beyond reasonable doubt there's no evidence taken at sentencing so what we end up having is a single count with no trial determination of amounts but the defendants getting immense sentences based only as i see it on probation saying we've seen something else not related to the charge conduct from a cooperating witness and then it turns out everyone agrees both mr gentry and kilo that person trying to seek favor with the government is impossibly wrong as to large amounts of the drug amounts and yet we still the law says we still have to say oh that's reliable enough to put him in jail for that conduct that wasn't ever determined at trial and probation just said it was is that is that the logic of the government's argument  giving interviews some number this is the year is multi multi years long drug conspiracy an investigation that went on for a number of years so like sometimes we have we do have a couple witnesses who who are off to their days now with respect that's what i call these two individuals they were wrong about the date on which it specifically happened now that's a total guess and these people have never appeared anywhere and there's what troubles me is that the law that says you can charge something prove no drug amounts not even for a for b to a preponderance not beyond a reasonable doubt then you've got to sentencing you don't even put a witness on to be cross examined at sentencing instead you give a probation officer a document you say is from someone cooperate in elsewhere and suddenly that's when he goes to jail for  that is what the law that is the law that is the ok so then what's the best law when you add to that that it turns out the witnesses you're relying on miss hawkins let's focus on hawkins as t she's wrong in possibly wrong we're just going to say well she must have meant or whoever it was as tequila we just were going to say they must have met the time when he wasn't in jail so it's at that was  other evidence corroborating that this activity did in fact happen you have to show when you do that then you have to show from evidence that is not within that date range that the amount attributed to  house the government provided additional witness statements so in our sort of briefing in response to the p s r that showed that ok that activity was actually silas and hilo were working together in the fall of two thousand i believe it was she said december two thousand and fourteen to april two thousand and fifteen so we put forward an additional wooden statement showing that were working together clearly not of the date she remember because he was incarcerated for that time but we have additional witnesses they know when they were working together was actually just a few months before and if we knock her off completely you're saying those witnesses independently get to the drug amount attributed to him individual date range but i mean unless we believe that her being confused about the deed means that she's entirely fabricating the fact that they came to her house multiple times a week but it is so easy for the government to put the evidence that's relevant to a conspiracy on a trial and then people are under oath and cross examined and juries make specific findings happens all the time but when the government elects not to put it on trial there's nobody under oath no one cross examined and they don't do it at sentencing all they do is handed  a report to a probation officer and then it turns out they were wholly wrong as to seventy percent why would we ever credit that other person that's never been cross examined saying must have meant different dates  what i hear in your consumer advocates and it is a concern to some extent about the state of the law though my question is how can we say cooperating miss police trying to get favor elsewhere we're just going to think she met another date she never said that her dates were quite specific and that report we're just going to say was she's she's totally wrong as to that but she must have been right about the drugs some other time must have happened yes supported by corroborating corroborating evidence so she said look he is as he was big scary looking dude and he they would come to our house to break down methamphetamine for distribution and we have other witness statements saying yeah these guys are working together just to be methamphetamine around this time i mean unless you believe that her being wrong about the dates necessarily mean that she's also wrong that they were working together with other people so that i mean again this is that is a factual finding with respect to kilo and this error that what's the law you're looking for what's the best circuit authority that will still deem reliable a p s r reference to cooperate as who didn't ever show up for trial when they're wrong as to anything significant can you think of it can you give me a single case that says that conspiracy charge with conspiracy to distribute this is this happens in almost every drug you're not trying to help talent out here argument no no i'm not this isn't a problem i don't i don't see it as a problem i see the government can easily correct it they prove it a trial to beyond a reasonable doubt or even for a for b provider and jury make specific finding nothing needs to happen at sentencing sentencing is already a problem when you put people in jail based on evidence proving to a provider it's then we have even further it isn't even proven at sentencing as proven in the  three and now it turns out the da three is wrong so i'm asking you is there any circuit law anywhere that says you can still put someone in jail based on reports given to probation that are proven wrong in any to include a greater amount in the indictment i mean i don't know why the government would undertake to the burden of proof beyond a reasonable doubt at trial and with respect to gentry because there's an explanation for the error there's a sick traction of the mounts and i understand that and that that may or may not give us sufficient confidence but with respect to keel on what i'm getting at is that are wrong how much can we trust are in addition to the other quantities listed in the p s are easily gets to the team so the remedy here at the court feels that the evidence was insufficient should be nothing of you just has a few minutes a police court the burdens on the government when it comes to these enhanced meant to prove that they apply the probation office when they initially present created the report didn't apply the enhancement they only did so after the government moved for it and it was based on what they concerned were these false reports but when you look at the examples in the guidelines about what kinds of false hoods require they have to it's materiality repeatedly f section that council did say when we the st two citations that they cited to worst where she lied were from or were found in the original this allegedly lied were from the original new trial requests in june but those even the judge acknowledged that was a misunderstanding because that the defendant himself said i'm or drawing him is a misunderstanding the judges on the record saying give him a chance there's time to rethink it's a conflict and it's nothing more than a misunderstanding so we gave him the benefit out early on later what upset the judge i think was that grievance but the parties agree the trial court didn't know about it defense counsel didn't know about defendant when asked about it he's like i don't know why i didn't tell the court so he had no idea it was going to have an impact or for or that it was important to tell the judge about so i don't think he could be that could be used again and say used against him to say he was trying to delay the proceedings with that that grievance about the discovery the only reason he wanted discovery was because on july th he said to the court i want this so i can determine whether i exercise my right to trial or to plead guilty there is no evidence he wanted that discovery for any other purpose  here at sentencing because we think we can impeach or that is the argument i don't see in the brief is that it was error to deny your opportunity to cross examine her and then it is true as to gentry that the probation said we will not count any of time drugs when he was in jail how is that not sufficient to make what was left a reliable well i mean she didn't test trial there was no documentation that support this this interview wasn't even recorded all we have is a summary drafted by the way but covered counsel's right that's that's the of the law the issue is was she then shown to be unreliable probation says yes so we won't count it isn't that what why would we not of an investigator would require counsel to either somehow predict the future outcome of the investigation or to disclose confidential information as to the nature of the investigation that's received from  from the client in the attorney client communications and practices the standard which the government argues that a movement must show to demonstrate a specific need to under eighty is unworkable if not impossible given the realities of criminal trial representations mcbride's been around a long time he's got a good feel for when counsel need help and in this case he was pretty solicitous right elect you come in and explain a nd time he did he did let me come in and explain what he stated in that hearing in twenty six years is never granted a request for an investigator that's a good response ok well again i'm going to ask you a question i asked you before so the answer may be the same what's the closest case because it's a tough issue when defense counsel sat just wish i could have more money i can't do this i need an investigator but it's a finite pool so when has any circuit court said a district judge committed reversible error by denying i guess you gave me one before and that you think that's the closest yes those cases a the court has any questions for me i can give my time back to the court oh my goodness we will use that thank you very much and i think that concludes that i've been known to cut things off ahead thank you i think you're all court appointed and government counts also on the