the choice of counsel violation occurs when ever the defendant's choices denied in the case of bar the magistrate judge constructively denied her the right to retained counsel of her choice which she had then been which then she had become able to for no your honor the the way that played out was as i have to say i want to read your argument tried to match it up against the record i had great difficulty because it looks like to me that the record reflects the exact opposite of your argument the child judges concern was that whether he would let her retain appointed counsel as opposed to requiring her to obtain private counsel which is the reverse of what you seem to issued and the statements that he made here in that same day at that day as you know leading up to that hearing they're going to several hearings before with respect to the issue of her financial ability to afford counsel initially at the first on march of two thousand and sixteen the magistrate told her that he was going to require her to retain counsel at the next status hearing in june he was frustrated and said he was through actually threaten to cut her loose and say letter sink or swim on her own in other words basically suggesting that he was going to force her to move forward without counsel at all and then at the september hearing after it became clear that she had the finances at that point to hi retained counsel which she had tried to do previously at march with mr i think his name is jim thought here but was unable to pay him at that time but at the september hearing it became clear number one that she had the finances to retain counsel and that the public defender it stated twice to the court at that hearing that she wanted to retain counsel and also stated that she preferred retained counsel rather than maintain the federal public defender representation nevertheless the court said essentially that's nice you've got finances now but i'm going to force the trial go forward anyway on november first i'm not going to grant a continuance  and therefore she was left with a choice of either trying to bring on a council but only having sixty days to prepare for trial and i think the record is clear from both sides that would have been an insufficient time to adequately prepare or to move forward with the federal public defender which the federal public defender it already made clear was an unwanted choice for her therefore the court created essentially a hobson's choice for either retaining counsel but he won't have enough time to prepare and the courts already announced that it's not going to give enough time to prepare the continuance or move forward with the counsel that she already had that wasn't necessary for her to for him to make that  create that false choice in fact at the march hearing in a similar circumstance she said he said i want you to retain counsel this is sixty days before trial i want you to come back in two weeks and let me know if you've been able to find i want to call ten attorneys and see if you can find one and the clear implication that that point was that if she'd been able to do it he would have granted the continuance at that time so even though he was willing to do it at the front end you now time a timely report that's correct a timely and correct report that is absolutely where i have not been able i am going to be getting these the money from the bank and then  well i think actually the magistrate judge was confused about how the bank worked here because he stated early on i could get a second mortgage faster than this i think that's fair but i think that the magistrate judge actually treated her with agree but if i might finish on the phone in your mind how long would order have been required to continue this sort of dance i mean it's some point the court also has to be concerned about the honor the key points here that i think are number one prior to that point she didn't have the finances to do it and the court was aware of the fact that she was trying to pull the finances together because that was the point of the four do it it takes three years i've got to go liquidate some really illiquid assets right and i got a three year lock up on stock that i was granted through some procedure and so it's going to take three years as long as i can represent the court that three years though in your view would it have to stand at least three years of that money i would say that your honor and that's not what was needed here the only issue here was she had equity in the house of three hundred thousand dollars it wasn't liquid because the bank was using it to pay off credit card once the credit card debt was paid off which occurred before the september hearing so when they went into court that day she had the money to go forward with retaining counsel which means she could have retain september one here because showed up with retained counsel when she had the money already and she really was going to use it to hire a lawyer she going to showing up on your representation she had the money to hire somebody prior to september one she should have shown up with  lawyer the bank said that she had to finish credit paying off their credit card debt in august so the statements that were made on the record was that she was still wrapping that up the issue am so you just said she had the money before september and now you're saying she happen which one well there's two sets of money issues here one is the monthly payment which is well the magistrate judge tripled on september first one thousand and three thousand dollars which made it hard to see all but their own lawyer she didn't show up with her own lawyer that day but to get the lump sum amount that she wanted to see she needed to try and do the payment through a credit card because she was under indictment the banks as we understand it didn't want to make a loan so she needed to pay off a credit card  to retain counsel with a lump sum payment and as the record reflects the ones that she'd spoken to earlier want to retainers in the amount of twenty five to fifty thousand dollars so the point to your original question your honor is you didn't have to wait three years after that point this is the point where it was becoming clear that she had the money to hire her own counsel and that was the exact same day that the magistrate judge said no i'm not going to give you any additional time to go forward in fact he didn't even necessarily have to do that he could have said you know if you come back with somebody in a week or two this is what he did earlier this is the same thing you did in march you come back in a week or two with an attorney i'll keep an open mind and consider it so for three years as long as every two months he says come back two with somebody then well we'll do something the only missing point in that hypothetical is that day she came back with the financial wherewithal so in your three year stretch would it tell me what the record is that that because it seems like i mean you said both yes and no and the answer to that question as to whether she actually had the resources on september won because you said well she didn't have a lawyer because she didn't have it  she had rats things up right but then you've also suggested that she did have it as a what is the record reflect that she actually had the money to retain a lawyer on september the first and that's what she wanted to be helpful if you could see refers to a specific page or pages all right with respect to the joint appendix page ninety three her counsel states this is lines fourteen through nineteen your honor what her plans are if i may tell the court what she wishes to do or hopes to do is now that she has free credit card space to reach out to the private attorneys that she had spoken to before if any of them will take credit cards as a retainer she would certainly pay it that way and get a private attorney and then above that will that end suggest to me that she has the money to do it well says it says that she may have credit card space although the banks are questioning whether they're going to let her do that and it doesn't say that there's anybody that would take a credit card or retain well it says that she has free credit card space and i guess i can make a representation to the court that this because that's not what i said it doesn't say that on the record i agree with that you're on the other point that this was raised she doesn't ask for a continuance order to carry this out well the judge said he wasn't going to grant to continue ask she was even given the opportunity the judge announced during the hearing that this case is going to go forward on november first no matter what i don't want to cut off the argument you're going to run out of time and you may wan hit some of your other issues it's up to you but i'm ok with respect to the the points with respect to retaining private counsel there's another point where a deep public defender stayed on page eighty  seven i'm certain she she would what she would like to do that as we sit here today that's what she's been wanting to do and also with respect to the attorney client relationship it's important to no that there's been issues here with respect to the finance the federal public defender as the magic recognized in this order don't usually deal with people where they have to manage financial issues and one of the issues counsel raise was the challenge that was creating with the attorney client relationship and requested that the sensor that the court assist with the maintenance of the financial piece but also raise the issue for them they were trying to prepare for trial and this was getting in the way of the attorney cli relationship which is part of the reason they wanted to give her a chance to retain private counsel if there are no additional questions at this time i reserve the balance of my time thank you very much  write same rules for the united states the defendant in this case donna talley after requesting court appointed counsel at her initial appearance in february two thousand and sixteen never deviated from that request in the eight month period that followed prior to her trial date in november of two thousand and sixteen she had ample time ample opportunity to get counsel grown choosing and her right to do so it was in no way her tail by the united states magistrate judge who was conducting an inquiry under eighteen us c three thousand and six as to whether sh and i think that is important to recognize that the tenor of this is all the magistrate judge is determination of should she get court appointed counsel and that stand from his concern that this was a defendant that was representing to have a house with three and i think it's also important to note that this did not start in on september first it occurred over a period of time from february all the way through september to says a matter of practice not to say this at all improper but it in your district the speedy trial act and i believe the speed trousers wait for a brief period of time at the arraignment magistrate judge can make that finding but i think it's important to know that the request for a continuance in this case and there were two were submitted not to the they were submitted to the district court in the district court granted those continue its so and so it can be done just understand understand the practice in south carolina for example the district judges are always the ones making those determinations but in your your district sometimes then there was a motion to continue that motion to continue was a joint motion it was based on not only these financing efforts these continuing efforts to see if she could refinance or problem to see if she could go and find retained counsel and also some scheduling issues that was committed to the district judge and that first motion was in april of two thousand and sixteen the district court granted it in may and trollers reschedule september twenty seventh the second motion to continue and i think this is very significant in our time period here from what we know the refinancing of the home heard in august two thousand and sixteen the defendant had last provided her for status report to magistrate judge in july twenty sixth she refinance based on some scheduling issues the defendant did not oppose and that's filed on august eighteenth so we've had two and a half weeks since the refinancing music for there is no reference at all made to this need for additional time to get retained counsel for an effort to get retained counsel and that certainly would have been the proper time that again was made before the district court and that was granted on august twenty second how this all arose from honor's was a after the police fell through the  had heard anything from the defendant in about six weeks since early july and he issued a requirement for her to submit another status report and in that status report and this is significant as well she says that the money obtained on august first and this is on the supplemental joint appendix on four in the magistrate judge second show cause order would quote not enable her to retain private counsel or repay the government for her court appointed attorneys so that is the are out in the case and that was on roughly what date the status report was filed roughly on august twenty ninth and we know what the status report says because it's welded in the magistrate judge to show cause a magistrate judge realizes  defendant since july fifth but if the home is refinance on august first in the money is available then there's been a continuance filing this time period has been status report there is no talk at all about her going and getting retaine no talk of a continuance off and there is never a motion to substitute so there is never a motion for a continuance the magistrate judge in the course of the hearing again is focused on whether the defendant should be permitted to go forward with her court appointed counsel whether the money that she should pay should raise at all or whether he should force her to get retained counsel and in the course of that hearing and let me refer to what mr ivey read he read a portion continues and the defense counsel states if not and she's saying if she can't go out find an attorney who is willing to accept payment by credit card if not she could she intends of possible to go to a bank attain a personal loan now that she has no debt other than her house that would be a very quick process and they would give her a loan and she could obtain a private attorney that way and if not obviously she absolutely agrees she should be she would be able to pay more to the court than a thousand dollars there's no indication whatsoever that any efforts are made to go out and find an attorney there's no attorney that's waiting in the wings here there's no motion for a continu a question about this case which struck me as very i mean this these crimes took place on time right on and there were significant clean offers on the government and that would have let this defendant maybe problem here or not is this entirely different question and it just seems like five years when she would have gotten nothing for years before i guess that was  authorized at the end of the trial when the defendant was in the position as to whether she had to testify or not she did say i think my defendants have done a good or my turn to have done a good job i don't talk very well i'm not going to go forward at the sentencing that was largely conceal her family was not aware of it dr becker not be aware of it so to the extent i can offer kind of my sense of that i do think that may have played a part in this not wanting to acknowledge the jury i know they're going to believe this i made a good terry she did not your honor certainly was right not to do that since since we've sort of fallen detour can i do that as well as a different question i want to just ask a factual question on the confrontation clause issue and you know one of the oddities in reviewing cases from this perspective is you don't actually get to see the exhibits you might want to think about of putting them in the j at some point but the  first page of thirteen see right which is the exhibit that's challenge how is that different from page seven of thirteen right which were the records that were compiled by delhomme what did you all do different put this exhibit in the record because what thirteen see was the thirteen series of exhibits were records from and were shot in the two got distributors thirteen a was a series of records from two thousand to two thousand and nine thirteen b if i remember correctly had some print outs of hundred code that had been tracked by him shine over a period of time and then thirteen c were seven orders that were made in two thousand  with your so it's the check dr becker's office the page it's the invoice from henry signed about the order it's records from thirteen be related to thirteen b which are just the internal captures of the substance abuse that are distributed  screen print out all typical business right i've got that that's pages two through whatever thirteen see what i'm interested in his paper is the first page which is what we've talked about a little bit maybe is that album six summaries and sort of how that's different from the information that was on page seven of b which was basically those same order that you add additional information to the first page of c it was not on page seven of the well judge thirteen see the first page of it is just a very small hesitate to even call it a chart it's about an eighth of the page and it has five columns it has the order date so it's got seven words it's got to ship a seven six ship date it's got the invoice number it's got the check number that paid for first page just has those five columns that i mention that list the date and invoice number check number and remember it's like a nick little excel spreadsheet that must have been put together by going to resign it serves sort of as an index or table of contents but all of the information supporting that very small chart is contained in the records that follow in thirteen cities so to the extent it's anything we've caught in a summary chart but up point outs of the court that there was an issue with the accuracy of that first page the defendant indicated that there was an issue of accuracy there was this confrontation clause issue and our position of course is that the records that followed were all business records not on testimony so the very small chart  provided somewhat of an index to those records the extent there is no issue accuracy is not conclude that again the magistrate judge i could go back to that just gave the defendant every opportunity to get a room counsel and that's what he was trying to do the defendant is now claiming that what he's trying to do somehow is richard right now so when the defendant essentially ran out the clock on the situation taking months and months and causing lots of delay and that's what led to the magistrate judge's frustration so the magistrate judge appropriately determined also reference it at the end of the hearing on september first the magistrate judge did say after initially saying that the idea of getting retained counsel doesn't appear to be that attractive the magistrate judge then did say i've got to think about think about whether i'm going to require you to get retained counsel but permitting her to get to keep her court appointed counsel in the government's view looking at the record is certainly not the same as restricting propriety to any counsel of choice there was no motion for substitution but the issue with respect to the relationship with council seems to be part of it i think the federal public defenders did an excellent job so this isn't a question or a challenge to their performance our view of the record you know suggests that they did well it just seems that this is what we've gotten back from her now that we represent her that she had concerns about trusting counsel with respect to that issue now i agree with  judge that frequently you have clients who turn down please that you kind of scratch your head in fact i had one of those with mr samuels earlier this year but that's one of the aspects of what actually was happening with that relationship  with respect to running out the clock i think that's an unfair characterization of what happened here this was really driven by the financial issues the bank you know wanting to pay off their credit cards first would not be available to enable her to either retain private counsel or repay the government for her court appointed attorneys docket number thirty eight is under seal so i can't read it to the court but i would urge the court to ask that it be delivered to you and  review it we were unable to find that language anywhere and in that fifth report my hunch is that the magistrate might have gotten that mixed up with previous reports but that certainly was not the case in august and that's not what was stated