address issues three and four concerning forfeiture because they present clean yet related legal issues that can be decided on the record i will then address the st issue denial of counsel of choice followed by the nd issue of the broken promises with regard to the ineffective assistance of counsel during the forfeiture proceedings consuls performance was clearly deficient because there was no performance she did not discuss or provide copies of the pleadings to the client she did not file responsibly dame's despite knowing a valid defense and she did not appeal or move to stay in the forfeiture order can you oriented us you know i understand we're into all of the things that counsel didn't do on the forfeiture or does that have to wait another day still no it does not need to wait another day can you help us with that certainly so what happened in this case of bias we had he's having an appeal now but on the on the appeal now is it appropriate for us to consider ineffectiveness or does that have to be on a hay b s after the appeal this particular issue related  forfeiture can only be considered now because as it is a monetary penalty and monetary penalties cannot be raised into that's why just because it's forfeiture or if it was some other so we you would say wait or you may not i'm not going to put you on the spot well but if it presents a rare case where it is appropriate as to the forfeiture we have a combination of both this is a rare case where we have enough on the record to decide it but we also procedurally this is the only time for us to decide it it cannot be a reason to twenty dollars to fifty five dollars because it's a monetary penalty it cannot be raised in a writ for koren nobody's because he is in custody and the government has not suggested any other vehicle that would be appropriate for the court to consider this particular ineffectiveness a assume that we know not that we agree that she didn't file any of the right paperwork that would have protested forfeiture and in fact that there were some arguments available based upon her affidavits in her discussions in the testimony that he owned some of the property outcry and could have done certain things and she didn't do any of that but do you still have to show plain error that he would not have had to forfeit this exact amount or what do you have to i would say no it wouldn't be playing air it would be the strickland analysis district standard of you so we would need deficient conduct plus prejudice although we have also raised the chronic standard which only requires not so much deficient conduct but no contact no testing of the government's case in which case you would not not need to show prejudice so we don't look at the plain errors standard and whether you can meet pranks three dollars and four dollars at all in this case we only look at stric land and there may be the two you just need to address prejudice that probably correct assuming i mean like i said we have to strickland claim as well as the chronic claim where prejudice is not required but we do know that we have prejudice here because he was punished and he was punished above and beyond what is constitutionally mandated and that kind of takes us into issue four or we talk a little bit more about the rule thirty two dollars issue and that is a plain air standard and i do discuss the prejudiced in that portion of the brief but what we have here is we have the government seizing more than its permitted to because it's only permitted to seize funds that are traceable to the offense and he or his prejudice is he had a valid defense that these funds were clean and therefore they were not subject to forfeiture but the prejudice showing is different the prejudice showing for your ineffective disclaim would be but for the ineffectiveness of mike i would not have agreed to waive my right to challenge the criminal forfeiture are correct so again this is where these two issues sort of they're a little bit similar but they also go down two different paths as to the ineffective assistance of counsel claim we don't just have prejudiced as it relates to you took something of mine that was above and beyond where you were permitted to take the other prejudice that mr burke suffered was the fact that because he did not receive proper counsel pre plea it undermines the knowing involuntary nature of the plea because he didn't necessarily know what he was bargaining for and he didn't fully understand all of the rights he was giving up when he entered into that play what is mr brooks done to prove that but for the ineffectiveness  i mean i don't necessarily think that mr brooks has to prove that but for analysis i think again backing up to the strickland analysis all we need is deficient conduct which i think we have and then we need prejudice and again the prejudice goes in directions one of the direction of greater punishment that he suffered as a result and the other direction is the one that undermines his plea and undermines his understanding of the plea but is as we see here today there's a there's a plea agreement that waives the right to challenge the criminal criminal forfeiture order and so none of this even gets off the ground in tell you figure out a way to get around the the appeal waiver in the forfeiture order to challenge weaver does that make sense so we have t some reason to believe that things would have been different but for the in effect of this of the council or there is no way to find prejudice right well yes and no so we the government has not contested that this issue does not defeat the waiver of something that was the plea agreement per minute a defendant to bring a claim of ineffective assistance of counsel this forfeiture claims stems from an ineffective assistance of counsel claim it is not a substantive tack on the forfeiture of the waiver is not a barrier correct because it's specifically accepted in the police greenlit because the plea agreement specifically allows that's what a six is it's an exemption to the appeal waiver if your counsel is in effect correct and so while i agree that the plea agreement does say the defendant agrees not to contest forfeiture the issue with that is what he actually knew and if you look at any of the four documents that he conceded to reading on the records that would be the indictment that plea agreement the factual basis and the pre sentence report not a single one of those documents describes or identifies any specific property to be forfeit and we've got counsel conceding that she never presented to mr brooks the bills of particulars the preliminary orders of forfeiture and the thing that specifically identified what would be sought and further we have her saying i assured him based on my understanding that no forfeiture would be saw we further do not have any notice to mr brooks based on the rearrangement transcript and the can i say i don't mean to interrupt you but i seventeen that would be approximately two months after his deadline to appeal and well that's been next question why is it not separately appealable under federal rule of criminal procedure thirty two two before see which presumably talks about the time to appeal from the final this is obviously in or differently than the judgment the original judgment it's entered what two months later from the original judgment and there's a separate deadline thirty two  there also talks about federal appellate procedure for so it seems like the answer to the conundrum that that mr brooks and the government is having about where are we supposed to challenge the criminal forfeiture order specifically contemplated the rules outside of both the direct appeal end of the rule twenty to fifty five motion well and not to i think why thirty two point two the four subsections see that you talk about does not trigger his water is effective as to the defendant and if things are done properly that order is supposed to be incorporated into the judgment at the time of sentencing the final motion for an order of forfeiture and the final order is what makes it i think that we could look at the effectiveness of the final order forfeiture as to mr brooks would be just as ineffective as a free standing order that imposed a fine a certain time after sentence or that imposed s defendant's right title and interest and certain property may be ordered consistent with a superseding indictment and then it was that is not that but there's no property identified in the superseding indictment that is not adequate but more importantly that was not pronounced at some time saying and so now we have a written judgment that is broadening the oral pronouncement of sentence so i understand that issue separately i understand your th issue my question is about the rd one and why this isn't under rule thirty two two this i'm pointing to the final order forfeiture i think again i would say that it's because the final order is effective is to rd parties on but again that gets us right back to our i c claim is brooks said on the record that he wanted to appeal the attorney never filed that appeal and it is say it was appropriate for her to file an appeal from this order she also did not file an appeal for this order which means we're still stuck on i e single ineffective whether it was the fourteen days after the final order or that the original time correct and that's part of this case and what did they argue this point the government you know this was not an argument that was raised by the government the idea that the entry of the final order would trigger a separate appellate period i'm still troubled by what the standard is and what's the burden he has to show that the forfeiture imposed would have been less than the amount that was imposed for them to have a reasonable probability is that the standard is that like the mark has case or does he have some other standard or that i used to claim or for the rule thirty glove so i would say that they're different again because the i e c claim is going to be governed by the strickland analysis whereas the rules thirty two dollars claim is governed by plain error standards what are the specific standards and what is your best case under each will under just that i say for the forfeiture i would say that this is a straight strickland analysis although i'm not waiving i thought it claimed to say that i don't need to show prejudice because you don't need to show that he would have under the rule thirty two and i'm late and never know the standard under the strickland you don't have to show anything except that i didn't the prejudice does not incorporate that he would have gotten had to pay less forfeit less it could but i don't think that is required and what case says that i don't have a case off the top of my head but i would say that it is just your sort of standard the idea analysis is a reasonable probability that the outcome would have been different and we can look at that in two ways we can look at that as and he would have received a different sentence or he wouldn't have played or he wouldn't plan under the circumstance but he does it i don't know what you have in the record you know mark as says will they could show this and they didn't aren't you in the same situation as the marquez folks know because we do have proof in the record and there's three one thousand dollars in a savings account and then there's the condominium in florida and she specifically describes in her sentencing memorandum  so he i didn't say that so we don't know whether it was clean proceeds or not correct there is and there's no testimony on the record it was an allegation made in pleadings but again that takes us right  that he might have to pay less money but for the deficiency or something like that is it your question and right my understanding is that forfeiture i think it's discussed in the shade case isn't a part of the sentence and so whether a prejudice  strickland argument as it goes to forfeiture in this case is that it had to do with his decision to plead guilty that he arguably was under the impression that there would not be forfeiture and that would become more of a whole versus lockhart issue so there's not a prejudice argument that he would have not had to forfeit his condo so because that's not part of the senate's is that your argument and i want to preface this by saying that if the court wants i'd be happy to look into the case a lot more about this and file some more briefing as i think that there might be some i would just have to look at the case law but because forfeiture is not part of the sentence i don't know if the same sentencing strickland prejudice law would apply to it i just know that i mean this is been the argument in the case though right and so i agree with opposing error st why aren't progs three and four met here prongs three and four aren't met here your honor i think the problem with a finding that prongs three and four met here would require this court minutes i hope it doesn't take the seventeen judge already pointed out the sort of strange procedural posture of this case that because there was the tap claim that because the evidentiary hearing on the deal really the only twenty dollars to fifty five dollars claim the judge bar be considered in this case was whether the notice of appeal should have been filed that's the only issue that was in front of him and the granting of the out of time appeal the reinstatement of the judgment that that because that happened he dismissed all the other twenty to fifty five claims just going to say he asked for an appealing he didn't get one maybe we should send it back so the affidavit can be tested i think that the reason to not send it back for evidence here hearing judge all right is that because the evidence that is in the record here contradicts the substantive claims that mr brooks raises here the challenge to the substance of the forfeiture order the substantive breach claim the evidence in the record here contradicts that those other claims that mr brooks raises the have really have more that they really are ineffective assistance  exactly right and that's been our expectation throughout this case is that it would go back before the district court once it was resolved as part of this direct appeal and that these other alegate provided that mr brooks properly files a twenty dollars to fifty five dollars after this appeal is resolved that those issues would go back before d the dis and that they could be resolved with factual determinations credibility findings at the district court you're not saying that he can't win that's right saying it we should proceed in the normal order that's  can mr brooks file a twenty to fifty five motion raising ineffective assistance of counsel for failure to advice me on this criminal forfeiture claim give me what your beef is painfully oblique and not addressing that question and i apologise for that  i think that there are ways that he could do that i don't want to say absolutely yes but i think if the ineffective assistance of counsel as to advice about forfeiture affected his decision to plead guilty for example that that could be a cognizable two thousand two hundred and fifty five dollars claim and i'm sorry that this isn't in our brief but our expectation all along was that once this issue once this case was resolved on direct appeal that we would be back in front of judge darby a resolving these issues provided that they're properly raised that wait a minute you're going to argue though that he can't raise forfeiture on the twenty dollars to fifty five questions about prongs three and four and you're now down to thirteen minutes and i'm not trying to push you but i just do need you to answer progs three and four still and i guess looking at prongs three and four again i think my best answer to that is that this  just a standard way for forfeiture to go about and in the district court case there was a preliminary order for jermyn the ship that the stuff that's in the record suggests that this was just a normal run of the mill garden variety forfeiture there's nothing remarkable about the for i don't think that they get in that much detail i don't think it's been with their product three can be satisfied i think that's part of the problem in this i think that's part of the problem in this case judge our audience one being on plane air it's mr brooks that burden to show that there was some kind of don't have any reason to believe that that of innocent exists but it's just it's not there just based on the way that this case came about tips that we find claiming error on product three just by some statement that's made in someone's brief that i would have done this or i could have done this had you not you know had you know had i not known that i was not going to get the lesser involved person it's enhanced me you know and that is  true just with this case because his allegations that are made about forfeiture of one were part of that affidavit that was attached to the sense dismissed two thousand two hundred and fifty five and two because they really have to do with the performance of his counsel because looking at the face of the record on appeal it just business as usual with respect to forfeiture so they really are tied to the district court making credibility findings as to that affidavit and making factual determinations about the allegations that were part of that since dismissed tw i don't think that it is part of the record on appeal i just i think that the to answer your question no i don't think it would be legal or i don't know i haven't encountered anything that would suggest that but the value of the affidavit is so limited again because it was never meaningfully in front of the district court that the sure court was never asked to can to really make any kind of determination about anything that's an error except for the snippet that's about the filing of the notice of the notice of appeal do over on this on this do over in right to let the court consider we do that sometimes when we don't well we say it's not clear and we let them go back for some sort of ricin it's a procedure of which this would be a part and i think we have done that and a number of occasions without actually finding error and my answer to that would be that in this case the record evidence that is there other than the affidavit that was attached of the twenty to fifty five and other than some statements in the sentencing memorandum the evidence that's in i just i don't have anything to point to because it was never an issue until the affidavit was attached of the twenty to fifty thought it was just business as usual with this forfeiture what address problem for you mean you don't have to i guess i'm not going to ask you  i don't know if i have anything to say about prong four other than what i've said already other and it really to me is anything about problem for and so to me again the absence of evidence in this case as to an explanation about the condominium the only similar to the forfeiture of the allegation of breaching the allegation that some a would a usas from either this office or from another office told mr brooks that he wouldn't be allowed to get his own private attorney similar to the allegations of the allegations related to forfeiture the substantive claims there should be denied because there contradicted by the record contradicted by mr brooks the statements of the arraignment there contradicted by the police there contradicted by the p s r and for those reasons those claims should be denied by this court to the extent said yes but nothing direct on that really what the rearrangement contradicts is the allegation of breach is there anything else that was promised to you do you understand that this is a twenty year mandatory minimum things like that would contradict the all of the i think it's opposing already but that the other alleged failures by mr brooks is counsel again as is the case when ineffective assistance claims usually are brought before this court that's a question that's better suited for another time another day in front of the district court could make factual determinations and credibility signings and it has been that the government did not tell him that they could get a private attorney is there anything in the record that he should not get a private attorney is it does the government deny that allegation and or is it silent in the record on that allegation it's silent in the record other than i believe in the government's response to the government sentencing memorandum in response to mr brooks's memorandum asking for the  years that a sentencing memorandum by the government denies the allegations that mr brooks made in his request for a downward variance the lawyer know about the allegations the lawyer mr brooks his previous previous lawyer confirmed that he was told that she mr brooks his previous lawyer mentioned it in her sentencing memorandum correct right so he said she said it and the government denies it or doesn't really address it point blank the government denies it but that requires me going outside the record nothing in the record before us that the government denies where they've got two statements in the record that c that they've got two statements in the record that confirm him and the other lawyer am i wrong on that i'm happy to be wrong i just can you help me this is your case brooks never moved for there to be a finding that the just if there was never a hearing or any opportunity for the district court to make a finding one way or the other does the government deny that our office instructed him that he was unable to get an attorney yes we do deny that but that requires me to go outside to exactly how someone would challenge a criminal forfeiture order if there was a good substantive challenge to the criminal forfeiture order to be had so i'm looking at the judgment this is the judgment in a criminal case that was the original one injured in two thousand and seventeen and it has in the same document the same seven page document that says you're remanded to the custody of the bureau of prisons for two hundred and sixteen months it also has a thing about forfeiture novice leave doesn't specify what the forfeiture would be but i assume  in some other case it could say the definitive word for the defendant's interest in the fallen property united states one condominium in florida and then would that be supposed that that was wrong either you know it should have been subject to forfeiture it wasn't properly noticed that i don't know the ins and outs of forfeiture enough to give you a hard answer on that i know that i had my experiences i think i've had cases where that has i don't want to speak i'd be happy to provide additional briefing about the myth that we led at the beginning of the argument with it's not part of the sentence you said that you criminal forfeiture is not part of the sentence and i'm for twenty to fifty five purposes shade says that it's not part of the sentence imposed such that the substance of a forfeiture order can be challenge as part of a tw yes it's in the judgment of the judgment of the district court judgment in a criminal case simply chalk and i would think that that would be challengeable on direct for anything reasonable on direct and then judge him then for the same reasons that the twenty to fifty five motion would allow you to challenge again the twenty five motion is challenging the same document right vacate modify correct yes that's right and i can only say that that's just what the shade court said was that because it's not part of of this appeal whether or not that condominium is properly forfeited then isn't it whether the district court in ordering that the condominium be part of forfeiture satisfied rule thirty two two yes that that is part of  if there are no further questions the government would ask that the court affirm the judgment in this case allow mr brooks which would not prevent mr brooks from properly raising a twenty to fifty five in which the district court could resolve many of these issues make the necessary credibility but i'm glad that you raised that because the government's brief claims that everything else in the record points to their side of the argument while everything else are only two things the plea agreement in the plea colloquy what hangs on mr brooks  affidavit we have the documented history of substantial cooperation by mr brooks we have the sentencing memorandum be a counsel's on the record statements at sentencing we have mr brooks indicating that he would attempt to try or is it more concrete from what i i think what the government has done is they've tried to shift this issue into a breach of plea agreement claim when in fact it is a re my best effort the goal is that is to get a ten year sentence that isn't that the government will seek a ten year sentence in their five k motion and they will not forfeit the condo in florida that was the deal but what do you do with him saying that there was no such promise that he relied on you have a hearing to determine whether or not that in fact he occluded because he's the one who said it and they don't you normally people are not normally allowed to contradict what they said at the at the hearing well you know and actually i had a case in my briefs that says the plea colloquy is not insurmountable and if you can point to enough other evidence to show that there were that there was a reliance on an agreement and that that formed the basis of the understanding for the agreement then your entitle to a hearing and that's what they seek thing in that they're still hope even at the time of the hearing that is still going to happen even when they're finding when he's finding out that it's a difference and it's that they're still hoping for the motion i think defense counsel did her best to to put it to the court and to say judge you know this was our understanding and you could deal is that she was still standing mum because she thought it was going to happen after the fact because he was testifying or do anything in some other way she did explain in her affidavit that she thought that because of his history with the special operations division that they could somehow help to reduce his sentence that is that is something that she explained in her affidavit that is correct she was still his attorney at all the times in question when he got the final order of of the forfeiture it at all correct correct it is because he also had a supervised release revocation that was transferred down to the eastern district and she represented him in that which i believe posted where the court asks is there any forfeiture or anything else in this case and the prosecutor's response there may well be a judge i think some of it was pursued in maryland we will file any appropriate motions of necessary that is what makes this an irregular proceeding this is supposed to subject to an abuse of discretion standard because mr brooks did not have an opportunity to object isn't the opportunity to object to the moment you get the most the th final forfeiture order you file a motion for reconsideration motion for new trouble thirty three something like that actually the moment to object is when you get the motion for a preliminary order forfeiture you should file an opposition to that i understand that would be the ideal situation and then you would again object on the record sentencing then you would take your direct appeal that would i think  set of circumstances as to how this should be hit in this case is the right way to do in this case but then that sort of puts our rule thirty two error back into ineffective land because the attorney did not file that notice of appeal and i see that i am out of time