permitting hoping to address three of the four issues briefed and on appeal denial of the limited right to substitution of counsel severance and loss calculation case give us the four factors to review for whether a defendant's right for a limited right for substitution of counsel has been violated one of those is time and as i've briefed at first blush that doesn't look good for mr jackson this is the first day of trial but based on the type of conflict it makes sense it did not become ripe until about a week before trial and then the next time mr jackson was before the trial court he raised it and the type of so he could maybe new a week at a time and when he filed the disciplinary council complaint and then sent that to the court why could he have not brought that to the court's attention the week before he did send the disciplinary up to my understand this the disciplinary complaint was sent to disciplinary counsel and sent to the court i guess that you know it doesn't get there to the court until you know right before trial but in the specific motion he did not file a motion that's correct but  could have written a letter to the judge or or something i mean i agree your honor but i think rigged even if it were a week out i think we'd have the same argument that it all had pretty last little different than the day of yes your idea of talking about is as a request substitution of counsel timely and morning of i don't know how you could argue a straight face it's time i'll do my best and i and i'm sincere in this that the conflict did it here is a lack of communication that developed out of a lack of trust and a lack of trust comes from having an attorney who's yelling at him telling him if i'm going to nail your butt to the wall for this this is your own attorney tell me these things just didn't happen with the last twenty become ripe until it's proven that the attorney really isn't ready to defend mr jackson for trial so again it's a lack of communication that arises that a lot of lack of trust that counsel will be ready to defend the case i can't deny judge griffen that the that the yelling and the clashing occurred for weeks mr jackson says it himself when he says yeah this is been going on for a long time but she keeps telling me she's going to be ready and here we are in she's not ready and she's not going to present the evidence i'm going to ask her to present those the attorney have the discretion to say i'm going to present this at but it's not this evidence absolutely i can't run from that but if that's the point that a defendant says yes my attorneys not ready and it when it comes to the timeliness i think it's relevant that it was this wasn't a surprise to the court or even defense counsel the court says you know i've kind of anticipated something like this was going to come up so if it's not a surprise to the court i think that helps mr jackson's argument when it comes to timeliness when it becomes comes to adequacy the judge didn't ask about the complaint and we think you rely too much on his perceived peers perception of the competency of defense counsel instead of talking about what happened in this case the judge saying hey this is a good attorney i've known her for a long time she'll do a good job not what is she not doing to prepare what's telling you that she's not ready to defend your case when it comes to the extent of the conflict this was not a sham the even preston harrison a codefendant  is saying yeah she's pretty much been arguing against our case from the beginning she's accusing mr jackson of crimes that the government's not accusing mr jackson of this is corroborating evidence that this is not something that's been made up at the last second and in fact it has been bingo going on for months yes could he have written that to the judge a week before admittedly but it's not a sham if it's been going on for months and codefendant  agrees that the attorneys were quote working against us and that's page id thirty five zero seven this has to be balanced against the need for the public interest for trial we think the conflict is high enough the lack of defense to outweigh the need to go to trial that day thanks severance the defense the government's first response is this is for appeal i have probably spent ninety nine percent of my first letters to my clients explaining why we're not raising ineffective assistance of counsel on appeal but in this was one of the rare cases that we felt the record sufficient because the issue is what evidence did the government present against co defendants that bled over and was harmful for my client what other evidence is needed to show what that evidence would be the only question then is it strategic to go to trial with and move move for severance or allow jointer and in this case we have all the evidence we need that this was harmful the joinder was not good for mr jackson and we don't have testimony from a defense attorney do we as to why he did not file a motion to sever the trial we do not have her testimony that is correct to say that there is no strategic reason i mean are left to guess are we at this point and that's i think kind of one reason we don't normally decide effective assistance of counsel and i don't think in that i have handled a number of twenty to fifty five's and i can't tell you one where the the defense attorney is you say the record is totally developed to decide ineffective assistance of counsel but what's missing is anything from counsel as to why there wasn't a motion so the i don't know the reason posited by the attorneys before the district court was well we're working together and the government uses that phrase they worked together that's why we have why jointers ok for mr jackson but that there's two problems with that number one they admitted that they're working together in order to divide duties and they're certainly not working together so that one attorney is trying to exonerate the other client that's just not going to happen so the the the reason given in the district  that's not plausible and on the up and on the other side is all the negative evidence that came in on mr jackson and i'm sitting with two co defendants and the jury the jury gets to hear that i'm a signatory on the account and i'm somewhat responsible for the money going to my co defendants but the government gets out is able to get up in closing and say to the jury they went out and bought a twenty gun gun closet they  had a pool and in ground pool put it i bought a escalate in a b m w that's what they're doing none of this would have been relevant against mr jackson and that's why we feel that the severance ineffective says the counsel for lack of when it comes to loss the clear clearly a brony a standard is that it not only be inexact but outside the universe of acceptable computation but we also submit that the polson case which we cite and i believe you're your honor judge white wrote supported the novo standard excuse me for the methodology behind the last calculation i think our best case here is turner with you i think you author also authored in judge griffin you were on that panel it's as you have to prove but cautious but for cause for loss for everybody shaffer smith invested three point five million we think none of that should be included but it worst you got to take one million away because kevin foster stole it what's the but for causation for mr jackson for kevin foster stealing it taking that money without authorization zero and what about all the defendants or all the investors that didn't testify and for which there was zero testimony that they were allied on any false statement to invest that they would not have invested if it weren't for some fraud and the turner case as you got to prove that but for in order to include that last that's two point eight million dollars that was included in los without the two point five without a two point eight or even if it's one million from chafer that did not involve appointed counsel and the united states would just observe that the analysis differ significantly for retained counsel versus appointed counsel so that some of the cases cited including is timeliness which counsel notes at first blush does not look promising for his client the united states would suggest at second well it does not look promising it was the morning of trial the disciplinary grievance which is represented to have been filed there's nothing in the record regarding that having been provided to the court prior to that day and in any suggestion and anyway substitution being necessary and so timeliness cut very strongly against the suggestion for substitution this was counsel that had been appointed ten months prior to the trial and jackson's description of his concerns with counsel went back to very early on in fact he complained in discussing her lack of confidence in him that within a week or two she was bringing him a plea agreement which of course counsel can hardly be faulted for if one had been proposed by the united states but it also illustrates there'd been a long standing concern  timeliness is a significant negative for the request the second factor the addison adequacy of the district courts inquiry if you look at that inquiry at thirty four ninety nine to thirty five twenty six the court did a very substantial inquiry into the nature of jackson's concerns he heard from jackson he heard from jackson's counsel he heard from defendants counsel who had been in a joint defense agreement and he circled back and heard further from jackson certainly an adequate inquiry and it went far beyond while the court did note is familiarity with counsel that's a small part of the court's observations the third factor whether the conflict between the attorney and client was so great that it resulted in a total lack of counsel was and this was a key part of it was not receptive to certain financial ledgers that he felt should be used as an exhibit and she felt that authenticity issues this is not the sort of thing of which total breakdown in communication is made this and even that dispute was a recent vintage counsel explained that there had been the luminous e mail exchanges between counsel and the defendants up to ten to fifteen per day and those are ongoing i believe the week prior jackson had stopped participating in those e mail discussions again the district court noted that that was something posed it was apparently based on as jackson explained his dissatisfaction with not his own counsel's reference most that could possibly be gleaned from this record the fourth factor cut very strongly against substitution the fourth factor is whether there are countervailing considerations  public interest in a timely proceeding and here the jury prospective jurors were in the building two out of the three counsel for the united states were from out of state witnesses were in the building from out of saint the district court did not abuse its discretion in declining this request turning briefly to the ineffective assistance of counsel argument the united states primary position in our brief is that this is not should not be addressed on direct appeal certainly the first prong of the strickland analysis deficient performance could not be established on the present record there's been no evidence taken from counsel regarding the reasons for any decisions whether or not separates might reasonably be sought beyond that if you look as our sufferance in that context is very disfavored what's pointed to here is spill over at and spaced on the harrisons extravagant spending primarily but it's the united states admits that evidence would have been similarly admissible even if jackson were tried alone this is spending from an account that jackson directed funds to and faster funds go into an account which jackson is the sole signatory he wires them out to this other fella and the forever now account from which the being directed and in fact there were suggestions below by the defendants that open that was actually hoping account nothing wrong with that account won't it was asked to either defend it completely appropriate for the united states to demonstrate now this is not a holding that went to him i don't believe there was evidence of him using funds from that but nonetheless the nature of the fund had to be established in order to make out that the redirection was inappropriate if there are not further questions on the ineffectiveness of counsel argument if the loss the district court concluded that the loss here was nine point three million dollars and that was spaced on the amount of investments from the nineteen identified festers the argument appellant makes is that that was inappropriate because it was not established that each of the nineteen and festers in particular fourteen who he had enough as i believe thirteen as being non testifying and one who testimony he doesn't believe supports that would be shaffer smith whose testimony he doesn't believe supports the needed link to jackson the argument again is there was no showing that all of those investors relied on fraudulent information from jackson the united states cements this fails for at least four reasons first the alternative he suggests on a piano which basically subtracts out those fourteen investors leaving a total on his brief two point two million was nowhere mentioned in the district  below the position was oh the last cannot be determined so you're just going to have to use again which is two hundred sixty eight thousand so the two point two million alternative was not put on the table at the district court in the district and in looking at whether the district court made a reasonable estimate the choices that had been presented were the total investor losses versus two hundred sixty eight thousand in addition given the per basic ness of jackson's fraud which the district court was well aware of and tried the case consistent role in directly and indirectly providing fraudulent information to investors it was certainly a reasonable estimate absent evidence to the contrary which there was not  contrary to view all investors as having gridlock and been influenced by that misinformation third to look at whether there was a on particular statements but i jackson is an unnecessarily narrow inquiry actual laws looks at whether there were reasonably foreseeable  resulted from the offense the offense not necessarily specific statements and this court's decisions in turn are in healy and in washington which the united states briefs cites each of those illustrate that where an offense undermines the company's ability to succeed total and are an appropriate estimate of loss i was surprised to hear that he thinks certainly is his best case because i think it's mine and turner there was a situation where business opportunities but that didn't change the fact that the fraud was so pervasive that the business was undermined and it was undermined for all and  busters and that was considered a reasonable estimate of loss finally i would note that the district court and it's thirty five fifty three and looked to the twenty fifteen guidelines which were coming into effect a month later under those twenty fifteen loss to the same seventy eight to ninety seven month range would apply for any loss between three point five million and nine point five i believe here the district court found nine point three million dollars  order for this estimate to have been reasonable and reasonable in a way that would have affected that plus eighteen under the twenty fifteen guidelines this would not only have had to be reasonable it would have had to be quite some so point three or four million dollars your position if you don't really look at that you just look at the total investor loss but the guideline calculation that is irrelevant right so shaffer smith is the investor as to whom there's an allegation but the last one million of the three point five code all may not have been directly authorized by shaffer smith as to the first two point five the united states would note those were actually subject one of the substantive wire fraud convictions so jackson was directly by the jury to those wires as to the last one million the united states would submit that there to the fact that shaffer smith may have may not have directly invested those funds doesn't change the fact that the fraud whisper face said it undermined the business so turner's our best case because but for was applied for every dollar and yes turner recognizes that actual loss is the reasonably foreseeable peculiarity harm that resulted from the offense but the very next paragraph and that's page two sixty eight says the last must be caused by the defendant's fraud quoting the rough well case the three cases that the government cited and then i cite in the reply each one of them are distinguishable and support us because but for cause is applied for every dollar every defendant in those three cases last but they last for different reasons than we have in mr jackson's case in the first two cases it was a bernie made off type of situation the entire thing was a fraud from the very beginning there wasn't seven hundred dollars invested in equipment that could have gone just to somebody's pocket it was very different and the turner case definitely supports the position a stolen one million dollars or where there's zero evidence not a preponderance of the evidence with zero evidence but that another two point eight million dollars there is no but for analysis at all that the money ended up in the business the money that the money was invested but that's not the test that the money get invested the test is but for fraud would they have invested anyway that's why every single one of the witnesses that the government put on the stand at trial was asked now if you would have known this is that or the other would you have invested that's the entire point to prove but for cause and that evidence does not exist for one million dollars for mr smith if not three point five million and certainly another two point eight million i don't think plane air is furthered in a case where the argument is please find out if you please calculate under the guidelines what the loss is and please only use those things where a preponderance of the evidence shows causation this exact argument the cases  citing no but when a district court has the legal question before it and it passes on it we ask that the court not apply player and if even if it applies plain error please look to the reasons for the departure the the judge the district court doesn't say i'm only giving a departure because of the two point reduction that's about to happen it's that's only one of the factors so i think we have prejudice even if there is a there's a miscalculation of the guidelines there's a reasonable probability that there would have been a lower sense when it comes to severance the government in its brief the government wants to say right now all the evidence would have been admissible anyway but it isn't in its brief it says the opposite the evidence did not implicate jackson in the tax fraud and structuring charges for which the harrisons alone were tried well if if he's not charged with those how how are you going to get the evidence of how they spent the money what the government had been allowed to do and in a in a trial against mr jackson what they did here and that is spend pages a closing argument emphasizing the lavish out of control spending on luxury goods by the harrisons that did not occur at all from mr jackson and then finally when it comes to the substitution of counsel issue the fact that this was early on shows the extent even if we lose on time it was ok to timeliness let's say i couldn't come up with a straight fact pace and i was laughing of the entire time look at the other three factors if this is a balancing you know they're not you have to meet all four of these are four factors to take into consideration the fact is this is an attorney who cannot convince her client she's doing her job and can do the right thing at trial thank you your honors further questions for the thread i noticed that you