of counsel claims i'd like to focus today on the conflict issues issues surrounding the conflict i'd like to start out by saying that all of the parties in this case agree because it's indisputable that prior to the decision in mickens versus taylor this case would be a case of automatic reversal under levy under rodgers under a whole host of authority simply because of even if it were i would accept it were a potential conflict at the time simply because of the district judges failure to execute his inquiry duty so there's no question about that in papers filed below the government conceded that however we have mickens there's an argument that we make in the papers that this should still come within the exception to the non automatic reversal rule in mickens and that's where there's a protest by the in the macos court they carved out a narrow exception based on holloway that if there's a protest about the representation and the court fails to execute its inquiry duty then it still could be automatic reversal we make that argument but i'd like to move into the who protested the white mr white by saying he needed a hearing he was concerned about the obligations even though he said it was waive a bill and it was a potential conflict quite frankly as i intend to argue to you he was mistaken when he said it was a potential conflict at that point it was an actual conflict that adversely affected mr motto from the start from the day mr white entered this case and i'll  exactly what i mean his client was perfectly willing to to waive he said that your honor and what we know and he also talked about the limited form of representation and the fact that he had very little don't credit what that lawyer says when he has his own financial interest and other interest we don't credit what he says about whether he suffers under a con conflict or not we have to look independently at that and as for his limited representation crediting you were just relying on  said he wanted to be hearing he wanted a hearing he knew that a hearing was necessary but he tried to convince the court that he should stay in the case the court never had that hearing and that's the problem with not having these hearings because this conflict plays out incredible measure during the course of this thing but i say it's an actual conflict with adverse effect from the start because from the start mr white had to develop a theory of the case mysie know his prior client was central to this mr motto it had i'm conflicted competent counsel from the get go what would that counsel have done differently than what happened here at trial you're very good your honor thank you that this is where we list you know the adverse effects but from the start he would have to come up with a theory as to how to deal with messina let me say this is a preliminary point there are two very good cases one of the eastern district one from the southern district called position nia and young nucky about the continuing duty that the lawyer has to his or her client from a prior representation which they say is the same as concurrent representation that's judge weinstein and judge sheindlin and what they say is your board that attorney is barred even from making an argument that would be against that client interest in this case let's say the highlight of this case has to do with the of the conflict rather has to do with the de falco murder so vitality the underboss of the banana family testified directly then miss you know might turn the tables and say oh yeah i was lying then that was before i was cooperating he told me that for sure in which case that's worse than not bringing it up at all right in some sense yes your honor in the other sense it highlights conflict because i don't know i'm not asking about conflict at this point and asking about what a competent and conflicted lawyer would have done differently than what mr white did here and you should keep coming back to the conflict i'm coming back to competent and conflicted counsel seems to me would have likely done the exact same thing that happened here don't you think respectfully i disagree on why you two concepts are inextricably intertwined because we know the test underscores is what was there an alternative defense strategy was inherently in conflict with the attorney's other interests that doesn't have to be a reasonable strategy would say and we hear in the shorts it doesn't have to be a winning strategy it could be a strategy that was likely to lose but it was a strategy that was a plausible alternative here and to o evidence but he messed up he didn't give proper notice and so on what he could have done instead because in this case the evidence let's say the government's position is the evidence is overwhelming which by the way with a conflict doesn't matter under us versus corrosion c u r a s h e n or cruz versus lee but let's say at this point the evidence was overwhelming as to the primo murder mr white had no choice because what he could have done once those three witnesses are excluded he could have put in messina because the witness what those witnesses had to say is  told them that my tally did the perino murder on his own agenda without authorization and he messina was very angry about that and would have liked to have killed by tally if he could have so i would have put in missy no for that sort of thing because remember messina was given this broad evidentiary scope both because he was mr models coconspirator as judge paraphase found he was the boss of the family therefore he came in under discussion of family business he was his business partner he was again tied to mr a motto from start to finish there is no way that mr white even could have objective lee evaluated this matter without without regard to the conflict and that's at the heart of it regardless of what another lawyer without that seem to be arguing that an alternative strategy is an alternative strategy even if it's foolish and suicidal it just has to be a plan of something you could do but a strategy by there's no evidence that he was lying when he wrote those notes the three go to use they had full access to the scene no there's no evidence whatsoever in the record that messina would have turned on the government and would have gone this way but that's an evaluation white could not make objective lee he didn't know going in is he going to go this way or that way and either way white was in a quandary white could not have been the lawyer to make the decision in this case that's the problem and that's why this circuit has so much sewn white was also unaware of the document  which mr messina had written on lies he was to produce then no that's not accurate your honor in fact white stipulated not to use those documents there is no justifiable reason for him to stipulate not to use the scene as notes that said learned that messina is not going to testify or write for the government he's not going to be a government witness well it's not certain yet until about may twenty second i think that's a try just before the trial that messina isn't going to testify but  well first of all white could have called messina to testify and as i say should have he had no other choice is in this comments and i don't i'm not in the eastern district is it common to common to call cooperating witnesses in the defense case that you all have a shot it up prepping witness to testify part of the defense case when they don't have access to the unusual yes your honor this man was facing a life sentence and his other evidence was excluded there was a good faith reason to believe that messina would support tomatoes position in this case lying right and then that comes out if they testify and gets turned over as thirty five hundred or are to go i suppose the point is under sure's and all of those cases we don't get to that inquiry frankly because of the conflict here because any decision by way any evaluation by white with colored by the conflict irretrievably one last thing i'd like to say is if the court were to consider judge care if this is decision in the messina case itself in two thousand and three it's absolutely irreconcilable same kind of conflict of prior representation the government wants to say well the defendant also believed savage the disqualified lawyer was still representing him but judge care of his discounted that he said we could put another lawyer in so as not to represent him judge arraf is identified exactly the problems that we have in this case that on page two sixty three that white could not i have made a conflict free evaluation of the case that white would be barred from taking any position that would have impeached the man if he testified that he would have been barred from making any argument against that former client's interest and then in this case no hearing he held hearings the other defendants in the case he held the government in this case took the position white had to be disqualified and that messina did not waive his privilege so if there are nothing there why did  morning when you may please the court andre specter for united states honors i want to correct a few of the statements that we heard today and reply and just to pick up on one of the last few points the idea that mr white stipulated to not using those statements in the period to those just not accurate we point you to government appendix one zero nine that's a motion that white filed pretrial and he said he had reason to believe at that point that the government was going to put in we see no statement as not out of court statement and because the governor's going to do that mr white asked for an opportunity to impeach miss you know using these notes that he made at the rio to see and judge gaffers precluded that that's one example of how mr waite tried everything he could to preclude the same from coming in when the statement did come in came peached mysie you know he called him a liar among other things he said he's not to be trusted and so it's not accurate to say that he somehow held back or its name and came the i'm talking about the out of court request right no judge i think what would happen and i and i would you want to correct this as well you know it's we get the impression from the papers as if the government and the survivors just demanding a hearing from to care for us if you don't want to you know want to have it and that's not what happened white when he came on the case he disclosed that he had a conflict within appeared the government and mr white along with mr moto appeared for a pretrial conference there were twelve defendants with remodels there and that's one towards the end of the want him to testify that's that's absolutely right judge that's absolute right in the government failed to update the court that's and that is what happened we never moved to absolutely disqualify surveyed from representing a model  didn't have asked for a hearing right he said that he's prepared to have a hearing but what he also said you see said he's prepared to have a hearing that his client was prepared to waive the conflict at that hearing he also added this is at appendix one thirty seven there is no serious potential conflict in my representing a motto and likely no potential conflict at all so it's not the case that he was demanding which would have only arisen if you had you had complete control over this witness who was cooperating he would have done and was obligated to do anything that you wanted him to do including testifying that's right that's right judge and we should have updated the court on whether he was and whether he was waiving him his of updated the court has to waive if it's up even if it's a potential conflict tomato has to waive the fact that his lawyers representing that he's prepared to do it doesn't absolve the court of having a hearing to determine whether he's doing this knowingly and voluntarily and understands what the heck's going on that's right judge the there should have been a hearing there should have been a hearing i'm just trying to explain why this error occurred it's not it doesn't change the fact they were in there right i don't think it changes much of anything so there is this error that and so what mr schoen is saying that this error is basically means that we've got to go back and start over that we don't even get to prejudice we're just talking now about the fact of this conflict and it taints everything and so do you agree with that not after making the judge and i agree that before mickens it might have been different for macon's teachers as it's not about the failure to have the inquiry it's about whether there was an effect on the constitutional rights of the petitioner and there wasn't and i and i went through some of the examples of how mr white fought every part of the government's case including with senos out of court statement you know it's there's the question is whether it affected his judgment right and so i now have shown saying that he would have called messina now some other lawyers may not have but we don't know whether the decision not to do it by mr white was based on the fact that he had a conflict or based on the fact that he thought in his own judgment that this was not a good play and isn't that a problem well judge this is very similar to the decision and ice win that we saved by the second circuit where there was a same lawyer representing a son and a father who were accused of s and the same argue was made that when the son went to trial and not conflict the lawyer would have called the father and the father would have given all these good statements and there's just nothing to support that as there is nothing to support that here you know him did testify in two thousand and eleven in the murders right that's that's true he was in charge of those but it just it's a preview of what a cooperating witness someone who's one of those cooperating witnesses that these from the ship has ever had was going to say at this trial and it was not going to be helpful to mr mo pallant tried to dismiss the testimony of to be to anthony to peter who was not an easy witness for the government he had no incentive to testify to subpoena to testify but he provided you know very critical evidence he said that a model had ordered him to kill and that in fact to be to try to do so on two different occasions and what the poem says in his reply brief which i think is very misleading he says that we've taken a different position when we were here on the rect appeal you go to our direct appeal brief that quotes the phrase that he will mitts in this is what we said to be to testify truthfully and that is our position to be to testify truthfully he was important to this case and he was the most important piece to this case he had no conflict with mr weight just one last point that i want to make on the on the hearing question for whether a hearing should have been held is obviously one of an abuse of discretion and just careful is it not abuse of discretion and not holding a hearing the heaviest petition that he wrote a fifty plus page opinion way he carefully won through all the material facts that could possibly be resolved in this hearing he expresses frustration it's a poll of these allegations from dozens of filings or over a dozen filings from the petitioner and he found no possible material fact this is not a case where the trial judge was operating just on a cold record he had first hand knowledge not just presiding over the heaviest petition but over the trial over the related trials seeing mr messina testified he saw mr white perform he saw that mr white was defending a model vigorously that he pulled no punches and giving all given all his observations given white's aeration there's  no there's no abuse of discretion his decision was not outside of the range of permissible ones that he could make under the circumstances electron or seventy questions the rest of our submission thank you thank you it's  honor in the pair is case in two thousand and three he would have given the full panoply of explanations as to what could happen here that mr white because of his representation and continuing duties to the scene oh would have a problem here and here's what the problems would be and he would explain all of these things they could arise in the case and he would also give him independent counsel i'm sorry i interrupted you i'm sorry that sounds like a concession that this is a potential conflict and therefore waive all no your honor respectfully not at all what would be the good care if it would be the point of a cursor hearing just like judge korman had if it's an actual conflict because he still has to play out the curse you hear now in the c note to the judge's point the court did find this exact kind of conflict to be an wave  because of the risks and the dangers that happen so in this case we not only didn't have the inquiry duty we had a conflict the judge care of his had found form a c no himself in two thousand and three in disqualifying efrem seven to be unwavering if i could just respond very briefly to the points that were made because i was sort of accused of not speaking accurately documents seven twenty five defendant does not this is the stipulation i was referring to defendant a motto does not intend to refer to notes made by joseph smith c no on i three o two reports if the see no does not testify and there were other ways for him to get in but he stipulated not to use those and so i think i spoke accurately on the hearing what mr andre said to the judge was unequivocal it is the government's position that mr does a three forty four that mr messina does not waive that issue meaning privilege and his relationship with white that mr white should be disqualified from the case based on your honors decision with respect to  there was no they didn't know it was purely speculative what the prior client could have testified to or would have testified to here we have not seen those notes on the three o two we have statements messina made to capa and cantor rela other cooperating witnesses memorialized in their three zero to use their vitality did the perino murder on his own having nothing to do with a motto that serious stuff but white again couldn't evaluate whether to call masino on the evidence you're he this case is beyond the pale with all due respect on the failure to give an evidentiary hearing as i said in the documents below i interviewed white i've seen this it pay a five thirty seven white said to me why should he have to give me an affidavit he didn't need one in the surest case when he won basically why should he have to be his own executioner you can't use a chuang affidavit in a case like this that's reserved for a case in chang which even the courting chang question is reserved for a single issue case whether the defendant want testify that sort of thing all of these cases i cite razor chang movie nowness all of these cases say in a case like this sexually intensive you have to have an evidentiary hearing and at that evidentiary hearing we would explore with white all of the reasons he said in his affidavit ex parte to the government i don't remember why i did this i don't know why i did that which frankly you know undercuts any strategy argument which we often hear in these conflict cases but i'm telling you what white as told the court wh said to me why should he have to be his own executioner let's have the evidentiary hearing and get white under oath where we can ask him questions this is a case that demands that at a minimum mero now at a minimum never sure absolutely your hon been outlined for your client work the risks were going forward of course as your honour's aware and more than just questions that the court would ask is in advice of the court we have and the court would appoint independent counsel and in this case  the court at the point the court knew about the three o two certainly the court you would have used that as a as a particular example and said to mr white i'm sorry i said to mr a motto mr model listen your lawyer represented a  explained to mr white i'm sorry to mr amado that these are the kinds of things that can come up in this case white could be in a position where he has to if he has to decide whether to call him a c no and if he called him how can he impeach him this is again with this was concerned about with seven to impeach him on the basis of were he wrote himself not on the basis of any confidential information that you've learned as a result of representing him potentially but the danger is we don't know what he him work confort would have prevented him from asking me about it ok let's say he asked miss you know about it let's play it out and the scene oh says no i was lying then white's goal is to show messina was telling the truth when he said they're all lies so now miss white has the opportunity to impeach mysie no more generally white knows about crimes potentially that messina committed that he didn't give up to the government when he cooperated white could blow up on the scene o's cooperation which he is not a factor of that's broken no that's speculation i don't have that as a fact but that's the problem here that's what we talk about with these with the cases that's why white had to be disqualified we don't know when he's using and by the way as your honor pointed out missy no didn't waive his privilege and as your honor pointed out that was within the government's control frankly whether miss you know waived his privileges in the government's control whether he did yes your honor but i'm not saying that the government had the right word should have the government have complete control over messina because he was a cooperating witness and  practical purposes he does what the government says otherwise is not giving substantial cooperation and as this hearing reveals messina waived his privilege as to floor edwards because for whatever reason perhaps they weren't as concerned about having her in the case flora edwards represented miss you know the same time that white did but the government said at the same hearing she waived it is the floor edwards they don't waive it as to messina and they were waiting to hear from it macdonald about that but it never is in the record that miss you know ever waived his privilege and he could have and the government could have given an affidavit at any point as to what messina's testimony would be but again this is what the case is talk about the problem is here this is corruption this is cruz versus lee in these other cases the problem is sorry the lawyer can't be in a position of having to consider whether to impeach his former client and how far to go how much damage does he do and if you play it the other way if he makes messina undercut by tally on both of the murders has he put in a scene when you trick also with the government now the government wants to say well all he had to