was not called as a witness but it's not until the argument today in this court room that the defendant has identified any conceivable basis on which ms bridgeman might have had testimony that could offer any benefit or value to the defense the theory he's our he's articulated today is that she might have been able to testify that the defendant himself had not instructed his employees or at smith outlines the scheme that he planned to execute and did in fact execute whereby he would separate the drug instructions the m m s for newbies pamphlet that he suggested in the book that he suggested his father should write from the labeling on the bottle which would misleadingly state that the bottle was intended for water treatment that effort to separate is plainly the basis for the intent to defraud is part of the evidence demonstrating intent to defraud or mislead the government there are other actions as well for example when the f d a sent investigators to the first manufacturing facility and to the fulfillment company that was shipping the drugs mr smith removed the evidence from those locations and had it moved to one of his friends  properties he then had that friend undertake the manufacturing after afterward in and he instructed his coconspirators to deliver a note to the f d a investigators if they  came to execute a search warrant telling them that they were not authorized to execute a search warrant unless they had fulfilled certain conditions there are are other there's other evidence there's e mail there's an e mail from mr smith to another one of his employees saying that they wouldn't ship to maryland because maryland is f d a there's ample evidence in other words of his intent to defraud or mislead the f d a and it's unfortunate efforts here it doesn't depend on whether he told ms bridgeman anything in particular nor could ms bridgeman have refuted all of the evidence about the years long scheme that was the basis for the charges here so ultimately our point is that the record here does not demonstrate any adverse effect and therefore cannot support the argument that there was an actual conflict of interest that impeded council's performance with it affected council's performance and even if he could he has not been able to show the kind of prejudice that he would still be required to show here because this is not within that narrow exception for joint representation of multiple defendants i think it's not quite i think it's important for the court to recognise that the recitation of events concerning ms bridgeman and the effort by mr campbell the trial the appointed trial council to interview her does not paint the complete picture here so for example there's nothing in the record that demonstrates that ms bridge mins prior attorney who was also with the federal defender's office instructed her not to cooperate she asserted that she wanted to be represented by that former attorney and she asserted that she wouldn't waive any conflict of interest with the federal defender's office and the district judge herself both concluded there was no conflict of interest the district court instructed mr campbell that he could call her subpoena her and if she refused to comply with the the court would proceed with the normal mechanisms to enforce the compulsory testimony and that at that time if she were to assert any privilege or any right that those would be considered appropriately she had not identified any concern about self incrimination for example so that was not in play at the time it's also important that mr smith's pro se representation for two years actually two full years  a period in which he had the obligation to formulate his defense as the district court explained that his decision on the eve of trial less than two weeks before trial began to ask for appointed counsel was certainly within his rights but it also constrained the ability of counsel and the district court emphasized that mr campbell would depend on mr smith's cooperation in the information that he had gathered during the previous two years it turned out that mr smith was not cooperated with his trial counsel and as the supreme court made clear in chronic and in morris against slappy the can the performance of counsel constitutionally is measured based on the circumstances faced by the attorney and can be affected by the client's on willingness to cooperate and hear that's exactly what was happening so mr campbell had no need necessarily to invest to interview all of the thirty three witnesses that mr smith had identified including this bridgeman it turned out he decided not to call any witness it's not that he called others didn't harm his bridgeman which might support the kind of argument that the council has made about an adverse effect that decision makes sense in the circumstances it's perfectly understandable and it's constitutionally effective it meets the standard of a reasonable performance in the circumstances where the defendant has not cooperated where he hasn't sure the kind of information about the theory of his defense with his trial counsel and on that basis it's pretty clear that there focused in his argument about the materiality of the intent to defraud or mislead on the failure to register the manufacturing facility and turning back now to the subject of underlying  so i think it's important to focus on all of that evidence and specifically the three thirty one a charge which is the offense that's at issue here if the court has no further questions we'd urge that the judgment be affirmed to ask about count number six are there independent facts that show that smith was in fact importing the drug just for can you tell me a little bit more about what kind of facts you're interested in and i'll tell you what i know it has been the defendant's position that you are relying on the acts of the coconspirator and what i'm asking are axed by smith himself yes your honor so let me go through why i think the argument by the defendant on this point is mistaken and then i'll tell you some of the facts that underlie the charge and the conviction there so his argument is that mr smith wasn't the importer as a technical matter that the term importer has a certain meaning and that that meaning can only be attributed to the canadian shipper but our point is that the smuggling statute demonstrates that the offense is not who's an importer as a technical matter whoever fraudulently or knowingly imports or brings into the united states so the the evidence that matters is mr smith's communications with the canadian supplier telling him that he wants to bring in sodium chloride under the false pretense that it is and mislabeling because remember the sodium chloride as in it as a component of the drug is itself a drug and the accompanying labeling including the m s d material safety data sheet the invoice the customs brokerage documents all of that is the labeling for f t c a purposes so that's what makes it merchant importing merchandise contrary to law so all of that demonstrates mr smith's outreach to the canadian supplier in furtherance of this false hood that this is for water treatment this chemical would be used for water treatment that's what makes it importation contrary to law there are e mails in the  record between from mr smith to his canadian supplier that demonstrate that he wanted it shipped to of a company that was not a real company p g l waste water which demonstrates the improper purpose that is then manifest in the labeling that's misleading and fraudulent does that answer your question or i think your position is that how does he know what's in that lightly because he's not the one who labeling that an under the food drug and cosmetic act because the sodium chloride is itself a drug in this context so it doesn't matter who wrote the labeling what matters is he had it brought into the united states mislabeled included the failure to have a name a place of business nothing to do with mr smith's father nothing to do with that activity of mislabeling or anything so that's why that's why lucy already cases is extremely important because there's nothing to direct for mr smith that directed anybody to do anything in relation to the failure to register the manufacture or to give the proper name and place of manufacture so that i believe that's important also as far as count six was concerned  the government started out alleging both theories of comparability which was the smuggling and the receiving of smuggled goods country law they chose to prosecute only at trial first the for him smuggling contrary to law not for receiving  receiving they may have a case because once he received it with the with the m m with the importation documents and mr smith would have known what documents were used to bring him here and he would have been part of the problem but they actually charged him with with