morning your honor and may it please the court no he doesn't no he doesn't with those three words judge made a made it clear that he miss understood the nature of mr fields  claim to self representation denying that it had a constitutional dimension considering it only a statutory claim this was legal error and legal error of this sort is as the supreme court has told us per se an abuse of discretion since representation claims of this nature all are structural they are not subject to harm was a review and it follows a force yari that this court to reverse the decision of judge ma remand this case for a new trial at which mr fields may represent himself if you wish but your good does yours are th amendment aspect to this and there's a statutory aspect to this but is there any authority for the proposition that under the th amendment the right to self represent is absolute went when it's asserted in the middle of the trial no your honor there is not  contention however would be that it is essential that the judge addressing whether or not to conduct a balancing test in mid trial understand that the nature of the writing the sort of is constitution not statutory it's no different for example then if this court were to fail to distinguish between a constitutional claim of due process and a simple a p a claim of failure to follow an administrative procedure constitution claims always get a greater weight is there any reason seuss think well that might or might not be true and there's a line of authority there's a line of th amendment authority under for rather and there are actual line of authority under the statute is there any reason to think that for this kind of situation with the right asserted mid trial that the balancing test would come out differently under one and under the other we have no way of knowing that your honor we have no way of knowing how judge made a would have resolved this case had he properly valued the write properly understood that it was constitution these indeed he said i am confused i don't understand he said predated the existence of this constitutional right our claim here is simply that without giving appropriate constitutional weight value to the claim he cannot he has committed per se legal error and as the supreme court has told us that is always an abuse of discretion by definition irrespective of whether or not the result might be the same had he done the right way we will never know that we can't prove or or contend about  would we think the constitutional standard is stricter usually constitutional rights are a floor right there is a bare minimum of protection that a defendant gets and congress by statute or courts by rule can give a defendant greater rights they want there are looking at me think that this statute gives the defendant less than he all already would have had under the th amendment well two reasons your honor of the st is the statute predates the recognition of the constitutional right by the supreme court and have the supreme court thought that to be the case they would have infrared has said that the statute so vices which they which they did not and the nd is that we i know of no case and perhaps counsel for the united states can identify one i know of no case in which any court has ever said the statutory right provided here is true your honor this obviously there would be some cases in which congress can can magnify constitutional rights bisexual i would i would for example posit on the other side the differential between miranda constitutional rights and the statutory miranda case that was resolved in the dickerson case many years ago in which the court has pretty much said that the constitutional right is exceeds or at least equals the statute or the question of course before us in this case is the nature of the think it's an abuse of discretion standard under which we need to review this decision well i mean it is clear that this circuit has never a pint upon upon the standard to be applied to mid trial trial assertions of a right to self whatever standard it want to do for my for my position i would advocate for a standard that gave weight to the constitutional right and said that the burden was on the government in the court to to overcome that right with some showing of of so abuse of discretion would probably be your standard of review but i would be in court within that a more significant standard of assessment earlier on i see that i am running out of time and i would be remiss if i did not for at least a minute turn to the th amendment issue that also is involved in this case imagine if a baseball player there had hit a home run and then stood its home plate and said i don't want to run throw me another pitch i want to take another swing it that would be nonsensical yet that is what the government would have you believe officer haskett did it with respect to his traffic stop of mr fields having already they say hit a home run that is observed a traffic violation that provided probable cause sufficient to stop the to stop mr fields he nonetheless waited and as he said maintained a visual to see if the car would become mobile in an attempt to conduct a traffic stop for a traffic violation that is  a nd swing and a nd pitch and hit another homerun that makes no sense the reality is of course that mr that officer has had not observed a speeding violation at least not one that he recalled immediately and he was waiting to see if there would be a drug transaction as any reasonable officer might or for the core car to resume motion and to and to violate the traffic laws of maryland where neither of those things eventually did he retrospectively realize that speeding had occurred and imposed and imposed that vision retrospectively on the reality he had seen before but his own testimony to the fact that he was waiting for the car to resume motion is fundamentally inconsistent with that and with respect renders his his testimony non credible for for us that means that judge made a commit it was clearly erroneous in his decision to credit that testimony and with respect ought to have discredited the testimony and not accepted it as a basis for finding probable cause to conduct the stop and thus to suppress that evidence which was the fruit and the subsequent search of the barbershop which with the fruits want i can point you to it exactly in the record right now but i believe it was in a post trial brief post here in brief ok very good if if by any chance it was not made to the district court do you think that means that it's been waived  yes i would i would assume so you're ah yes i appreciate it thank you thank you your honor i'll reserve the balance of my time if i may my colleagues seventy other conflict of interest and effective assistance issues raised by mr samuels mr samuels trial counsel had a conflict his daughter was applying for a position at the u s attorney's office while that lawyer was also representing m the lawyer never disclose that to mr samuels he told it to the prosecutor but he didn't tell mr samuels and he did not tell the trial court and when the trial court found out about it the trial court held that there was a conflict so what comes next and the supreme court says in color versus sullivan that if if the lawyer was conflicted in the course of the criminal case then there are two questions that have to be addressed one did the lawyer pull any punches was there a lapse in representation and meant to was the lapse of representation actually caused by the conflict and even if it wasn't caused by that and flicked and was the lab still ineffective assistance under strickland so we've established at least at least three lapses in representation which i can talk about but the question still remains were those caused by the conflict or were those ineffective assistance under strickland but either way remained as necessary to resolve these questions so i'll start by talking about the failure of the council's failure to raise the issue of that mr samuels had been using cocaine thirty minutes before he spoke to law enforcement though mr samuels again he'd been using cocaine this was not disputed at trial the prosecution actually upstairs and mr samuel said that there was a gun under the bed in his girlfriend's apartment for his protection mr samuels was charged and convicted of felony possession and it was that statement that was the only statement that convicted mr samuels of the felony  charge because it was again it was his girlfriend's apartment his girlfriend testified that the gun was hers but the government played mr steele's interview inclosing and said listen when he's pushed he admits that there's a gun under the bed and that he says that it's for that it's his for his protection though sorry what's the argument that the lawyer should have made at that stage and was involuntary yes that it was well that it was it was not knowing or voluntary because he had been using cocaine it and what do you do with law to lots of cases colorado versus connally comes to mind which stand for the proposition that if the statement is not the product of  the police there's not a constitutional problem with well i believe it was mean he had an obligation to at least raise it and in a motion to suppress given how just given how at the time i don't think it's that it was coerced it was that it was it wasn't knowing or voluntary subject to the mellowing and voluntary waiver standard i mean the default rule is if the police approach someone talk to him they they don't have to mirandize someone outside of custody ill situation and the person is free to speak or not but it's fine for the police to ask the question well seems like neither one works the coercion theory doesn't work for reasons that i said and the reliability theory doesn't work because they found the gun i mean the statement was truthful well they found a gun but the question was whether it was his and he said you know he didn't say it was his in a state he said it was for his protection and that's what the government you know the government characterized it in closing that was an admission that it was his but it was the only piece of evidence the government had and we just we don't even have a record of you know quite bad performance it can't just be slightly worse than ideal do you do you read kyler as not the collar inquiry about how  conflict affected the performance of an attorney to be a different inquiry than that and if so tell me how much is a potential conflict have to affect the performance of the attorney in order to satisfy kyle or is it enough for the potential conflict to have just affected the attorney's performance by one percent just a he bit worse performance than the attorney would have done absent the potential conflict well i think there are questions there that i'm not i don't know that kyler lays out a bright line test about same notion that applies in the ineffective assistance context i think applies in the conflict of interest context which is that you know if there is a question if there's a question of how much it did affects the deficiency or the lack of representation then that's something that the trial court is  and you can think about it either in terms of the degree of deficiency strickland versus kyler or even you might think of it in terms of how you prove causation right stric strickland is a normal conventional causal chain and which is does the did the deficient performance cause prejudice up or harm the defendant on the bottom line here is different it's this odd  idea of linking linking the deficiency back to the conflict and that seems like a hard thing for you to prove so just to come back to the issue judge walker raised which is how how would you prove that a conflict of interest caused deficient performance if you look at the overall record and it seems like it's a relatively minor mistake in the context of a representation where the lawyer seemed to do a very good job overall well there are a couple of points there i mean i think in one on one what you need to show id and what we would need to show i mean we just we don't have the record right now to show the causal link i mean we have some properties from the government that certain you know certain dates in the hiring timeline but we don't know for example when when the trial counsel actually knew that his child was applying for employment me that's obviously an important fact that would have to be explored procedural posture win in the sense of get a remailed but i think we're we're just trying to understand conceptually how kyler works in a case like this sure and i realize there's not a lot of law in the colorable claim and a kyler type situation involves showing that there's some connection between the council's alleged conflict and and the strategy that they pursue right or the mistakes  and i'm not sure that you've drawn out what that connection is in a colorable way so one thing i do want to make sure is clear for the record i mean the trial court found there was a conflict and i understand not even the government is challenging that on appeal where we're agreed was a conflict the question is what's the connection between that but yes exactly but that's where again i think that's where i hearing is required i mean we just we don't have we just don't have the record at this point and  timeline of use if you're saying one fact you need to know is what when the lawyer knew about his daughter's progress with the u attorney's office correct that's at least one you know important fact we would need to know and our position here is you know that we identified three errors but yes the question is the timing of i had so suppose let's take let's take the most favorable assumption for you which is that the lawyer knew about knew about his daughter situation before any of the lapses that you claim what else would you do what else would you try to probe like let's let's spot you that one then what else this isn't a man in a typical stric situation you would ask the lawyer why did you make this tactical judgment or that was their reason why you withheld the argument is that the kind of what you're probing what you're probing is strickland prejudice i don't know how you probe you know pilar causation did the conflict caused a lapse well a couple things i mean i hearing we are also asking for testimony from from the child about you know their their process of applying like what they recall about it when the other lawyer found out whether there are any discussions about the case and the and then you know you mentioned obviously yes trial counsel you know would be asked questions about whether or not the decision was strategic but i think you're you you would also want to ask questions about about the relationship discussions with with the daughter about the case i mean i think those are just basic facts that that should be explored on the man and the cases the district court then you would well if you don't think that there was a potential conflict right i mean you know you noted that the government in this case didn't go out of its way to strongly contest your position that there was a potential conflict if i think that nevertheless there was no potential conflict here what do what do i do it well a couple of things and one that still leaves the strickland question right about it's pretty easily done and the fact that this didn't happen here i think was it was shocking to the trial court from the record and then when the trial and then the trial court you know ultimately found that yes this was a conflict and the just should i say look the district court concluded that there was a potential conflict the government doesn't contest that there was a potential conflict it's appropriate for this court to therefore proceed on the assumption that there position to disagree with that finding of the court mean i'm not sure i mean i don't i don't think that this court should i think there's a clear record below of why and why there was a conflict and i mean again here the you know the disclosure requirements not onerous and this there's a right under the th amendment to conflict for a council that needs to be taken seriously and when you have a situation where a lawyers child is applying for a job it's clearly under our  of excuse me d c fractional ethics rules it's clearly a personal interest conflict that you're the situation of an adult child living under a separate room rules what what stock my ground children when they're on their own doesn't matter i don't need to know about the sonata conflict for me well it i think it can all it  depend i mean it's a very fact based analysis the relationship between between the lawyer what the case involves i think there there are different factors that can come into play here you know the rules says that if if the lawyer if the lawyer has an interest that would be adverse to his clients he needs to disclose that and you know again there isn't a ton of lie out there but to the extent there there was you know it's consistently been held that if a child even an adult child is applying and been hired by the office that's prosecuting your client in a criminal case you need to disclose that to your client and i mean you know you mentioned the separate you know living under separate roofs i think you know that goes to the question of the nature of the relationship right and those are the kinds of factual issues that need to be explored in reno and those factual issues though seem to go to the question of whether there's a conflict not necessarily to the question of whether there's a connection between the conflict and the representation well i don't think that's the case i mean you know the district court didn't need to consider all those just find under the ethics rules and the ethics opinions in d c and the and the the court case law that's out there  and from new jersey i believe that you know when you have a situation like this where where a child even an adult child is applying for and been hired by by the office that is trying to put your client in prison you need to disclose that to your client so there's there is a conflict but again the question but i do think they're separate analyses but i'm i'm happy to answer more questions tha partner in a law firm there's a partner in a law firm whose parent is a justice on the supreme court that while firm represents clients before the supreme court although the partner different that's a different rule that governs situations when you have when you have a summons and the situation you're describing where you have a judge on one side and then the child is actually at the law firm but that's that's not the thing you surely every client has a right to a judge that's not conflicted yeah i'm so just just stepping back and it was kind of big picture do you think that the judge has a conflict in that hypothetical i wait but i don't know if that answers your question but i mean i seem to assume that assume that the client represented by the law firm in my hypothetical was not informed about the parent the parent child relationship do you think that if there was something amiss and that hypothetical substantiate that there are transacting drugs are good or circumstances so what you had was if i could submit it's a many edge it's a a many case in which you have a marginal  points but one consideration cutting the other way is an issue with fields came up what dale latin or twelve trial and the asking a lot to start from scratch when something happens rather than try to mitigate the prejudice government tries to claim that the district claims that the texts are more significant than not the district judge said i can't figure out there was text while about really the drug related activity but what's the drug there's no confession unlike the smith assume i agree with you that the district judge made a mistake and sentencing but as to that i think the mistake was that the district judge chose not to apply that career offender enhanced meant which would put the guidelines branch between two hundred and ten months and twenty years your client got five years do you think that that issue is before this so i think there's some force to that that conclusion and i think candidly and that i probably lean a little bit toward that conclusion but that the counterargument to that would be that you did through your appeal put before this court the question of whether or not mr tucker sentence was a lawful sentence or not and why does that not open the door to auk all questions regarding the unilaterally about would have to be you would have to say that's an issue of law but in fact the district judge saw a different way the district judge saw it as a question of fact and judicial discretion it hasn't been briefed if you were  it is is the reason that we can't take it up that the government can cross appeal or is there a reason that it hasn't been breached because if it's the reason it hasn't been briefed to problem that the  in which they were present yesterday thank you the st argument the defendants raised was feels right to self representation i read the record differently than mr rosenzweig it does not appear to me that judg judge who is an experienced defense attorney recognize that shields did and did not have a th amendment right that timeliness was an issue that accurately describes the right of self most of the cases talk about you know the right balanced against the prejudice to the defendant you know here the district judge also considered the prejudice to the co defendants and i'm wondering if that is a permissible consideration for the district judge to take into account i mean given that the th amendment right is as an individual right can we balance that right against the right it's of other individuals is that a permissible type of balancing in this context i believe it is your honor because i believe it goes to the question that disruption of the trial that's a defendant who's representing himself and who might be prejudicing his co defendants by the questions he asks or the witnesses he calls is going to inherently disrupt the trial because that judge everyone else is going to have to be on their toes to constantly stop lines of questioning to interrupt answers d and to otherwise interject themselves into the process to make sure that this kodesh this defendant shales isn't prejudiced think his codefendant so i do think it's part and parcel of to obstruction to the trial for the judge to weigh those to consider and you think that's true only after the trial has begun do you think it would be permissible to balance that type of consideration before a trial has begun it before the trial has begun a defendant does not have an absolute right to represent himself you know the supreme who wants to proceed pro se as opposed to mid trial when you're already a week and a trial have already had a week of evidence bad severance there is no longer as palatable  the judge misunderstood the nature of the right yeah so are there cases equating those soko of the statutory and the constitutional right in this situation when it's it when it's asserted mid trial or addressing one way or the other the question whether they would be the same or different which seems plausible to me is if every everyone agrees that it's a qualified right it's asserted me trial and the judge gets discretion to allan's what difference does it make whether you call it a statutory right or th amendment right yes sure and i believe we made that argument as well and already this court called the statutory right a fundamental right it talked about its history as being and one of the st things and acted by the st congress i think it was the day before the th when that became a had a talk about this history and when the supreme court read this court's description of the statutory right and for that it said it was intimating it whether he had some this understanding of whether it was merely statutory or six and then right at the time he made his decision and he clearly understood that it's the fundamental right that it was waiting right and that he had to balance that weighty right regardless of its source against mister against the disruption to the trial and the other factors balance and going to be abuse of discretion or as as to the th amendment stop the defense has provided no basis for this court to nd guess judgment has credibility finding after hearing the officers testified person this court i'm not aware of any case and denial of fields as motion to suppress as for the samuels conflict issue i understand that kyler standard to have three elements  potential division of oil to a link or causal connection to an adverse effect on the attorney's representation the focus of our arguments  your honor we may then internal judgment that we could argue as to the rd issue that even assuming that for purposes of this appeal that this was a conflict  the adverse impact on mr countries representation that samuel's identified were not possible alternatives defense strategies we can challenge we did argue below that there was no conflict that that she was brief i think that there's no potential conflict there and i don't think that that law firm has a duty to disclose to its clients that the child a judge is a partner in a law firm you agree with me about that sitting here today your honor it's it's really hard for me my instinct is to agree with you but that and fact it's not rooted anywhere in the law or in the code of professional ethics i'm just i'm not it ethics expert i'm agree that it calls into question whether conflict whether kyle replies and all conflict cases absolutely honor that's what justice scalia said on by four members of the court they said that issues not before the court today that was on the they they didn't resolve a question because it wasn't before them to time you have a much to say just one quick thought on this you haven't racketed prejudice as element for in this appeal right here that you're just you're arguing the deficient performance as related back to the conflict you're not arguing that we should ignore as as you would in a strickland case that we should just ignore the deficient performance because it didn't cause any prejudice why so i think we are argument has been there can be no prejudice because there is no deficient performance and that's why we didn't address prejudice separately or we aren't we haven't argued as judge walker suggested that the court should follow mickens suggestion and treat but typical strickland prejudice as applying to conflicts where there is no contract representation that's what mickens talked about it said tyler was multiple concurrent representation prejudice genuine alternative strategy or tactic that was that was available to defense counsel as the standard for last summer presentation or prejudice or whatever you want to call it and so that's the standard d we've applied in our brief to argue that the things that the defense identifies were not plausible alternative defense strategies some of them were alternative defense strategies for example defense counsel to ask for a multiple conspiracy instruction the district court had an independent duty to evaluate whether it should give that instruction when the defense had asked for it they simply say the defense should have argued harder for that's not a an alternative defense strategy  as far as for the way i do want to be clear we do not think that the defense has proven owen but they have not had the opportunity to do that pursuant to an agreement that the parties entered before mr samuel sometimes we agreed that the government agreed and stipulated that mr samuels could proceed to sentencing and take this appeal without prejudice to his ability to raise the conflict issue later my understanding is that that pursuant to that agreement we cannot argue and are not arguing on appeal we're not faulting samuel for failing to prove that way if the court disagrees  to provide us no i haven't i have a concern about the stipulation and it's just gone up substantially in light of what you said we have cases that say not withstanding our normal excuse it excuse of preservation requirements in ineffective assistance hope for ineffective assistance claims if the defendant gets a new counsel at trial and that counsel has an adequate opportunity to raise the ineffective assistance claim whether it's strickland or kyle or there's a preservation obligation and it's business if you agree that you won't preserve something the way you're supposed to preserve something and then come here and ask us to give you a re man because there was a buy a cream and you know you can agree to change our preservation rules john i'm aware of those cases i'm aware of your said please only brief the existence of a conflict does not address prejudice so the parties only briefed existence of the conflict judge made to then ruled against the government said i find a conflict ability to show the rest with prejudice and so we feel bound by that agreement not to argue a lack of logic if the court has a pending concerns i don't i don't set durango problem but maybe why if you have the new conflict free council in place and the proceeding is still in the district court i understand it it was midstream n s i understand it there there was some concern about not letting ont letting the briefing on  prejudice issue slow down the case the other parts of the case i get all that but why couldn't you why couldn't the council have done what i thought council should have that was post that was all post sentencing no it was present and saying as the fencing had been scheduled judge made to discover the potential conflict yet pointed new counsel mr met and her partner and he ordered new counsel to brief only of the existence of the conflict not prejudice he then found the existence of a conflict and it was ready to have the parties addressed prejudice read the parties and turn to stipulate to proceed to sentencing the well i shouldn't we think of that as the parties trying to  se a preservation obligation that the defendant has under durango he could have pursued me in what what  quite forcefully is look all i want all i want to remember for a fact finding and that's a preferred thing in ineffective assistance cases where you have to develop the fact mean you had that opportunity in the district court before the case came up here with the new counsel i agree on or as i've noted in the brief that something usual procedural posture i would have made a durango argument except for our stipulation i don't feel as the government given that we agreed and i i respects you're turning square corners once you have the stipulation on questioning why you would have done that and whether the parties have authority to contract away preservation obligations and then come to us and say please remain for a hearing that should have happened before the appeal was taken sitting here today and i am not able to answer that question  bill i think we do think that there are two ways the court controlled like the court asked quite a few questions about this one is that there is such inherent tension between attorneys duties of loyalty that there is necessarily causal connection so when an attorney for example at the fence attorney has also represented the witness force concurrently representing the witness the court has found sort of  tension there's no such an inherent tension here so that it's a because they have to show that mr conti failed to take these actions because he wanted to advance his daughter's interests over mr so i'm sorry this this goes to causation yes your honor i was just trying to answer some of the question i thought you said you don't feel able to assert that here and now given the stipulation i'm sorry if i if i lost the court i've been trying to discuss the legal standard not the factual record at this point oh ok this is just how how  inherent tension which doesn't exist here and the other is because of causation mr at the rematch hearing more want to occur mr conti would have to say yes i didn't take these actions because i sought to advance my  credible jare we think it would be credible but that has yet to be determined we focused our brief on the rd issue which is this possible alternative to fat strategy which we don't think that mr samples has  is not arguing it forcefully enough but they say he should have pointed to specific evidence on the record that would have supported giving such an instruction we don't think that evidence actually support forget that such an instruction oh i should have pointed to his post conspiracy crack sales and crack possession as evidence that in favor of a multiple conspiracy instruction but why was that evidence tend to support the argument for a separate conspiracy and struction so as i understand the multiple conspiracy case law it's that there has to be evidence that the jury could find this defendant guilty of a different conspiracy than the one charged but they the conspiracy charge ended at on february st two thousand a chink with westfield harassed and was not charged to have involved crack charged it's just completely separate conduct and the judge recognized that and routinely gave limited instructions for the purpose let me think the purpose for which the jury to consider evidence of things that occurred samuels bad four point two grams of crack next to the bank he was charged with possession with intent to distribute that cracked and so the evidence post february st i want to establish that charge i see so your theory is instruction or no instruction would crack evidence wouldn't have tended to wouldn't have tended to implicate him judge abuse cisco question by failing to sever the trial after fields gave his testimony the proof is in the put it that the jury could and did separate the charges and the defendant it acquitted mr right of narcotics conspiracy it acquit it feels himself of possessing the firearms that were found in the upstairs kitchen at the barber shop and it found that mr samuel so mr tucker were not record that the jury in fact followed its instructions and that those instructions sufficed to share any prejudice from mr b all of us you know obstreperous and untruthful testimony but testimony about didn't actually contrast between fields and the other two both in terms of what they're actually doing the degree of evidence against them and the behavior at trial seems pretty were friends he said they were good friends and that's about the extent of it and the evidence overwhelmingly established that i mean there were photos of all of them together at various points there were photos on samuel's phone you showing that they're all they're all in cahoots to perjure as well as to sell the drugs not spoil her prejudice to such a great degree that cept that the district court abused its discretion by possession of the guns in the kitchen and up stairs or a barber shop the jury didn't hold that against him but he must have been lying about that too he must be responsible for the guns and so i just don't think and a establish that that just report clearly errored or to overcome that presumption of correctness the evidence overwhelmingly established tucker's involvement and her own sales his being at the barbershop constantly heroin a point five grams per sale is supported by the size of the sales to the confidential informant yes your honor is there anything else any other compl any other any other evidence supporting that that's the only evidence supporting the amount and often any particular sale other than the fact that as the warrant affidavit shows one time of heroin so that further supports the quantities and vault in these street level transactions and have up to five sales per week that the court made what i call it was a very conservative estimate based upon the amount of time that tucker was outside the barber shop selling drugs the evidence over bombings the support that he was constantly there this court has said that point courts do this sort of estimate they have to be clark was d responsible for between one hundred and fifty and three hundred grams of heroin as a street level dealer of heroin in the involved in the same conspiracy venable i believe created guilty to three hundred and sixty grams of heroin and so filing sixty nine was the motion to suppress of the barbershop evidence and page nine section three b identifies the november th traffic stop as part of the grounds of the affidavit that was being challenged to be fair they did not say in hack verba fruits of the poisonous tree but i think that that filing was sufficient to preserve the issue if you if you get to reach that nd point also on the issue of the traffic stop mr mr learned that there was a lack of empirical evidence to reject officer has gives credibility i would point the court to government exhibit ten from that from that hearing it's an overhead visual of the c v s parking lot where the stop occurred and you will see that in order to traverse the distance from where he entered the parking lot to where he parked mr field no more than one hundred and fifty yards and meet five separate turns making it ing in pyrrhic lee i would think doubtful that he could have sped through the parking lot at the speed that the officer suggested a rd point turning back to the question of  self representation and to answer your point judge katz says there are indeed a number of issues where a statutory rights and constitutional rights are are repetitive each other off the top of my head i can think of privacy self incrimination provisions and due process provisions where the statutory rights are i would think inferior and i and to take judge walker's point there are other statutory provisions which are superior i think to constitutional rights we do not have any case law here suggesting that the statutory right of relied upon by judge made a was in fact superior to or more effective than the constitutional forever right and the fact that no court has ever so held is  of the fact that that is not the case my final point on this would be simply that while mr learn as correctly refers to judge made his initial statement that was somewhat ambiguous as to his understanding of the constitution the each of the self representation right issue here i think that we have to take that in context and realize that that was the st thing that he said and then after he went off the bench took some time to study it and came back he came back at with a far more definitive view as i started this argument with he quite like said mr fields does not have a six the minute right to self representation without ambiguity without the he doesn't doesn't that preceded that and he and he then mischaracterized characterize his understanding of dorothy as rejecting the constitutional nature of the right that we submit is per se legal error and per se abuse of discretion  thus from our point of view mandates a reversal an every man for a new trial in which mr fields may choose to represent himself and presumably judge made i will manage that that problem as as he did the thank you your questions my colleagues ok thank you mr rosenzweig i mean let me give you a shot at the question i had for the government which i didn't i haven't given you a chance to answer yet which is if i thought that the new council have an obligation to preserve the ineffective am not the expert on durango that mr lerner's has informed the court that he is i mean i just and i will answer your question but you know st of all i would you know in addition to joining in to in mr le carre's argument that he's made as the severance i mean i also agree with the point that he's made about that the government has to weigh these issues and that and the concerns that mr like are raised the federal courts do less worked on they otherwise might have than we don't reach forfeited issue with here you're asking us to do more work which is remained for hearing that should have happened the conflict i mean that my understanding is that they the district court you know activists quickly as it could by the time that the district court found there was a conflict you know that the parties convene there was a status conference there were conversations w court between the government defense counsel and the district court was was only willing to give thirty days to the parties to not just brief issue but i mean to have a hearing to prepare for a hearing and  which you know again because you know we were new you know we were new counsel we were not trial counsel this was a three or four week trial with thousands of pages of transcripts that would have taken thirty days was not an adequate time to investigate and prepare for that and meantime and also i mean the court and the court did not disagree with that the district court the express and i believe this is this is laid out in the stipulation that the parties entered into the district court felt that take in whatever time was necessary and how high up the conflict the issue materially prejudice and usually the district court ties up all the loose ends as quickly as they can and then there's an appeal i mean if mr samuels took additional time to litigate this one issue and then you know he would potentially prejudices ability to litigate other issues that he might have raised on appeal for example severance issue that we're raising jo appeal would have happened too late to be consolidated with the other wants that were out in front of it correct ok i got great so so there was that issue and then on top of that the government coun well but that also had taken more time but you know regardless the government counsel had indicated we will appeal this if we lose and in the meantime mr stimulus would not incidence was you know was in jail and i think this is prejudice i think that's true but the court order also said you know we we need to identify cases in front of particular judge do you think that would be a personal interest conflict as to the as to the judge's child that would not be imputed to the firm but the judge's child would have to disclose it if if there was a question of whether reasonable i want to know so doesn't that come pretty hard against you because he or the prosecutors daughter sorry the defense attorney's daughter was not the the prosecutor on this case well again here now that big standard is a personal interest conflict what matters is just she was applying for a job and the rule says if a lawyer has a personal interest has a personal interest that would affect his ability to represent his client he needs to disclose it to the client and the standard is whether a reasonable client would want to know about that interest and here the district court found that based on the case law based on the d c ethics opinions yes that's a conflict that a reasonable time would want to know about and it should've been disclosed so ok says yes if if if you're dealing with a case where there was dual or concurrent representation that's of course a conflict we're not arguing here that this was a person conflict we agree that that mr samuels needs to prove causation and if you look at the d a couple things because i think the government has characterizes the record on some important points so it's not just that mr that that mr carney failed to sufficiently argue that it's at the district court directly asked him a question and made a comment that said he said i'm going to give this multiple conspiracy instruction to mr tucker because i think the evidence is there because there's evidence that he was interacting with and identified individuals outside the conspiracy and i don't see that evidence the court was saying i don't see that  a different drug well i mean the problem was that it led to it it led to share a confusion i mean there was always going to be a risk of that because of the way the government charged him litigated the case against mr samuels as the government says he was charged with possession with in he's which drug we're going to but it is within the period of the conspiracy ok ok thank you thank you and i was going to talk really quickly about the mr clarke's testimony just that i think the record is not about what they're ambiguous again no audio no cooperator testimony linking the client to any specific sales or any sales of heroin so you have a case overcrowding the dramatic over sentencing judgment of sod this and the government i think subliminally and not cross appeal are recognized as well this is a career offender guidelines court doesn't need to reach out for where the parties