and a lot of what the district court found is not on dispute in this appeal for example the district court found we believe correctly that the sixth amendment was violated and further found that the trial testimony during which mr sweeney counsel was absent was in fact a critical stage and so the district court concluded that as a result under the strickland analysis prejudice can be presumed and eyes with question of course for a claim that brought other claims in the twenty to fifty five which are not at issue on the appeal ok but the so the one we're dealing with though is an ineffective assistance of counsel claim yes your honor although i think that that's a little narrow for a complete deprivation question chronic kind of uses both i agree with you because that's the that's the exact distinction that i that i'm looking at everything i saw as argued below was ineffective assistance of counsel not totalled up or evasion claim counsel claim the well it wasn't brought on direct appeal so would it be procedurally barr nobody has raised a claim of procedural bar here two for your honor so i don't know whether it would be i haven't looked at that in this case though but they also get into whether this constitutes the sort of total deprivation that triggers the application of chronic chronic is an ineffective assistance of counsel discussion because it addresses both prongs of the strickland analysis so in some ways your honor we might be splitting hairs in service of trying to find a procedural default here nobody raise a claim of procedural default below but but more importantly chronic itself might be responsible for the merger of these two lines of analysis i think under either line of analysis and one more note your honor it's important to keep in mind that at least as originally filed this was a pro se petition i certainly did my best to bring additional thoughts to the court but i think that it was correctly viewed as a chronic and it's progeny question whether we characterize chronic as a deprivation or it ineffective assistance argument i guess we could talk about for a while and i think chronic kind of blurs the t your honour's i think what's very interesting about what judge shelton it's clear that he paid a lot of attention to this but i ultimately strongly disagree with the conclusion he found that trial was a critical stage he found that this section of the trial even brief was a critical stage and he  the idea that when there is active testimony against a defendant it's almost impossible to dismiss that as anything other than a critical stage he cites favorably our analysis that trial is the paradigmatic critical stage this as this court held and turner that as a result you presume prejudice but in the next set of analysis he says nonetheless we can apply harmless error review and i suggest that in so doing that reads the presumption of prejudice straight out of the chronic analysis entire trial and i get the sense of chronic and so many other cases that you know what you're arguing is that this is a structural defect is it not that your position that we universe we're talking about is the complete depravation council and to me that's controlling my address that it's controlling and it requires us to agree with the district court that harmless which cites seventeen i think cases or i mention it in detail in my brief it's a a long string of cases for the proposition that certain things are amenable to harmless error analysis and certain things are not none of those cases deal with that structure what that probation was complete that's the that's their definition of when the absence of counsel is structurally and and that's perfectly sensible because you quite agree but we do agree on principle and i agree with you there was no consul for though three minutes and as i read the cases and for example maybe a confession there's no consul it's very crucial but here you look at the overall case right away and all of a sudden the thing that is there's a three minute no consul in the thirteen day trial and so then you have to say this is where i look at it is that structural there or not you don't have to  testimony is harmless there are no cases to support it minutely and you stumble across united states versus cade who in the second circuit i twenty min an absence and was also it was an ineffective assistance of counsel claim which is the way i perceive this one twenty minutes during testimony and they subjected it to stricklin prejudice and found the no prejudice i apologize that i didn't have that case in my fingertips and i should also clarify i mean there's no binding precedent there's no circuit precedent there's no supreme court precedent but i think that's the only other court of appeals case that could be found i certainly looked at the ones that the court cited and not one of them is trials absence during testimony no matter how brief your honor i think that if we're talking complete deprivation as requiring absence throughout an entire critical stage that undermines this court's holding in turn or which found that the attorney was absent during major chunks of parts of days of an eight day trial it was sort of a disturbing case to read actually because he was gone so often ok that's correct your honor but it also squarely held that were there not a waiver in that case that absence would have been found to be per se reversible under chronic so i think we can't get into the idea that maybe complete has to be you get no lawyer for the entire trial i think complete as you have no lawyer during a part of a critical stage here trial testimony and judge where we found that or and judge tilts i agree with the court and judge felt ultimately correctly concluded that the the formula set forth in form and on ti was the correct formula within which to analyze this case and judge schildt in making that determination to have these facts before him first of all defense counsel was absent for three minutes secondly the defense is in the case were aligned and mostly consistent and there was a joint defense agreement in place thirdly mr brink michelle conveyed throughout the pleading there was no as the parties addressed the claim the parties addressed the claim well doesn't in effect of the to find a sixth amendment violation under ineffective assistance you have to find prejudice correct that's absolutely true and sounds like somebody converted somehow into a total number of asian claim that at least from the pleadings i couldn't find being pled was that was not exhausted underact i believe that's correct you know in this case the district court correctly concluded that there was no structural error that undermined the reliability of the framework within which the trial proceeded in this case because the limited absence of counsel the the was what the first circuit analysis for example called a short term localized denial of counsel it was not de minimus as the district court said but nonetheless so limited in scope it was quantifiable and it didn't call upon the court to speculate as to what the effect of counsel's presence might have been in that very limited minute period of time for this reason  pages what is made clear is that defense counsel conducts an extensive cross examination of the the witness including if it's a total denial then isn't it  structural the government's position is no not necessarily because i don't know why your position is and it's not a total denial but it isn't a total denial that is the government's position it is not a complete denial of counsel that pervades the entire proceeding then what are we left with ineffective assistance right which the court arguably yes your honor which the court can then analyze and conclude that because there is no prejudice and i mean harmless error and stricklin prejudice there they're kind of two sides of the same coin usually and it will correct you on the matter once you get past this is chronic control and the supreme court i think would would embrace that in those situations where for example council cited to the green case where the eighth circuit i apologize the eighth circuit  testimony of one of the true victims of the offense and defense counsel left two co defendants counsel cross examination of that victim and he does based on that the circuit concluded that defendant was denied there was still a dissenting judge and in the section where i think focused more on just the significance of the trial that was missed her analyzed it very much as mean very much as george schultz here focusing on how long was it in the government said five states and five minutes in the defense of two hours and what was missed there was aggressive there was aggressive cross examination the questioning was determined by our district court to a on behalf of if you will consistent position of well there there was the it was direct examination of hawkins in the at the end of the six pages start his aggressive cross examination of that witness addressing the fact that there were lawful uses for these devices that they were sold only to end soul and soul what i'm trying to find out is one of the cases say as to how you determine structure or one of the things they don't feel is important as the supreme court at least that category if the era does not require the court to speculate as to what the effect of the presence of counsel might have been then that error is likely to be trial air which is error that occurs when the case is presented to the jury it can be quantitatively assessed in the context of other evidence presented earlier you gave us a bunch of cases where structural error was found do you what's your best case that this three minute absent for about an hour and a half on the afternoon of trial and now the difference in that case is the court ordered that no testimony be presented about the defendant during during so the court indicated that the errors made were capable of quantitative assessment but part of its russia now was the fact that it had limited the up the type of evidence that could be presented in that there are a number of denial of counsel key says one thing i do want to make clear to the court is in the trying to case counsel was absent on parts of the this court concluded that that was a structural error it was nearly twenty percent of the term localise you've given me ones where it is structural error and there longer terms i'm looking for some that go the other direction and that is that no one ellis the court concluded that there was no presumptive prejudice in that case ok the first  absence there it was when counsel was absent during jury deliberate jury deliberations and the verdict and there were questions being posed to the court and the court was communicating with the jury in that case the same was true in that arnold  if i were a lawyer was there but he was either intoxicated or asleep part of the time and my recollection is that we didn't overturn three brief points i wanted to or for the ellis case deals with a judge answering questions of the jury absent input from either the government or the defense and without the presence of the defendant either so it's not it's not trial testimony and it's not squarely similar to this because he was having ex parte me communications the flip question what's your best case that this three minute absence would be structural or i think turner supports it that's this court's case i think green vs aren't supports it as well your honor i also think part of the reason we're having this much longer and more significant time periods in those cases we do not have a three minute absence drawn or even close your honor i'll be very candid this is a brief absence that's why it's such an interesting case your honor so i think that part of the reason that your honors keep asking for oh that's the one i meant green versus aren't i think that's one of our very best cases i think that part of your honor i respectfully disagree that your honor with the suggestion that nader answers the sun equivocally i agree that nader is a structural error case but nader has to do with if i recall correctly the element of the jury being properly instructed about an element it doesn't squarely address whether short term absence of counsel rises to structural error i find it very interesting that chronic in film in some ways are like two ships passing in the night all of the chronic cases that we look at post full monotony circuit court chronic cases doing this an error analysis carefully they don't tend to revert to the full analysis of structural versus trial error they continue with the chronic analysis of is this a critical stage if it is presumption is presumed so in some ways that they were tells us for sure what chronic met by that but that chronic itself was as an example of structural error now if you don't have a complete absence which of course we do have the right then you have to figure out when would a partial absence be so have such an impact on the framework of the trial as it would be structural and and the district court said here we have that the aggressor you know we had the presence of  they want to do in the confession i mean that's you don't get much closer to structural except that you can cross examine about confession and when it was introduced at trial he had counsel your honor that's the difference and from the not one final point  then i'll be done your honor i think green versus aren't has some instruction as to your perception that the sixth amendment complete deprivation versus strickland analysis are kind of blurred i think green kind of perpetuates that blurring it talks about how if you're talking about absence of coun