regarding the continuation of trial and the attempt to stop and restart trial on day four by defense counsel what this boils down to i know the government wants to  by ignoring that analysis there wasn't any discussion on that day for signed bar of whether there was a necessity for a mistrial or not the district courts i'm i'm sure i counsel i we must to read about a different case i thought that the district judge thought that this was the continuation motion was made to delay it was it was not necessary it was with no legitimate basis for it so here's how the motion to continue and the motion for mistrial made on day four of trial interplay in a couple of ways number one the district court was well on notice based upon the motion to continue that at least in his opinion at the time that he thought i meant not be prepared by the time of trial so that's the way you have any case that says that an attorney beginning his own ability can and literally day four of trial if if when paul drag urges this court to consider given the overwhelming fumbling of trial counsel in dealing with the evidence in addressing the issues before the district court just goes into play that he was even unable to properly write a motion to continue i mean i i by day my day job as a trial lawyer your honor and i've i can't say i've ever seen in a  he was so he was the court was on notice for the purposes of our discussion at the very least the motion to continue put the district court on notice i had to i don't think i'm grotty for this thing now had i written it of course it would have been i'm sure as your honour's are used to seeing i am not ready for trial here are the specific items that need to be done before trial so now leading on to day four of trial what the what i outlined in the reply brief on days one hundred and twenty three and four dollars was i mean it was it was a kind of a keystone kops situation on the defense side of the table we had on at least three occasions an admission on the record i don't have and so the government is moving in its key pieces of between one of the victims and the coconspirator he conceded i just got this this morning your honor you know can i give me a minute here may take a look at it so this is what's happening exhibit after exhibit after exhibit before this defense attorney who bless his heart finally calls judge mehan aside at sidebar and says judge i have no idea what i'm doing i haven't read any of these exhibits  he indicates pretty clearly he was relying on mr drag go for trial preparations as you know i was told certain things the evidence is now coming in and directly contradicting that and for all of his faults which has been discussed at in the briefing did come forward at that time in front of the district court to say this has to be put to a stop i have no idea what i'm doing i haven't read these exhibits of course he said i've been paid when judge may handle trouble by what you just said you said the reason he gave for not having addressed those who exhibits and so forth is that his client had given him a totally different account of what the facts were doesn't he have a right if not an obligation to rely on what his client think just the opposite when so we should do it with the attorney client privilege because we don't want clients to tell the truth to their lawyers no of course not true but there's a there's a duty on an officer of the court and has an advocate who is going to be confronting the government exhibits and suppose tentatively his job is to cross examine to attack the credibility and attempt to undermine the government's case as best he can he's dealing with the tangible things that are coming in front of the jury and been a by the district court to the extent that knowledge of those exhibits might be a might correct the defendant's understanding or hopes or whether or not he even seen these trial exhibits i can only assume that if the defense counsel had not seen and was completely unprepared that these trial exhibits that the defendant had not seen these trial exhibits to the extent that the defendant has a mis understanding now certainly we go when we listen to the defendant and that's part of the investigative process of preparing a federal defense of this magnitude but you still have to look at the tangible things to look at the documents look at the evidence that's coming in and we there was definitely time in the reply brief we discussed part of the problem in cases like these and less so as a trial lawyer you know the other half is getting ready there's some very serious charges against your client here it's hard for me i mean you can see how if a lawyer create game the system completely if we went along with what you said and and i really find some i'm struggling with how your client was prejudiced the evidence was absolutely overwhelming you could have a really really really good lawyer and i don't know what the lawyer could have done so if  evidence is overwhelming and highly prejudicial and i think that your client would be convicted no matter how good the lawyer was what do we do with this claim that you're making so if it if it gets sent back down because the attorney wasn't right so the gets reversed for in this there was a necessity for a mistrial the last few pages of the reply brief focus on the line of law coming from the supreme court that says a trial doesn't necessarily cure other defects so just argue when what would i have done or potentially have done as trial counsel in this case it's incumbent upon a trial attorney to know the evidence and exhibits so well that if there are  or expectations a victory from the defendant and all candor it's sometimes the trial lawyers duty to disabuse the defendant of those notions any guide this towards negotiation that may be made but used on the situation that i'm trying to get you back to is we have a number of instances where things aren't exactly done correctly like and ya know you don't want to hear what strict them alleges they got two parts misconduct by the lawyer and prejudice and what i'm failing to see here is prejudice either in terms of the motion to bifurcate or in terms of the continuance where's the prejudice so the prejudice your honor as the supreme court has said attaches also not just to the trial swell within the realm of possibility if not likely that this case should have been aggressively negotiated you can't negotiate a case if you don't even know the trial exhibit sort of the disc i have never seen an argument that said my client was so guilty that he had ineffective assistance of counsel because he was so guilty i've never quite seen seen prejudice turned on its head usually it's that i could have been shown to have not done this crime if i had to answer an unequivocal yes to that question your honor however there is a reason that the in effect of assistance of counsel claim attaches to the plea negotiation process now as the appellate lawyer you know i'm tied to the record in this case i was even appointed for the purposes of the reply when your honor see that literally boxes and boxes of evidence are being moved at one time i can't stand before your honor's and speak to what else was in the discovery what impeachment materials were in the  i'm sorry your honor you may have an eye a sea claim so this in terms of there is a minor interplay in terms and with the ineffective assistance of counsel in the following way and that is to the extent that the motion for mistrial touches upon trial counsel's unreadiness this court is disinclined to review such issues although i still maintain that the strickland analysis per se does not apply if it's clear enough on the record so what we have on the record is not only trial counsel's admission that he hadn't not just not reviewed the discovery but even the trial exhibits which is represents a small percentage of the universe of discovery in any case he had even looked at those it was unfamiliar with those there's no conceivable way that an attorney could effectively negotiate much less try a case when we have on the record and unfamiliarity even with the evidence the government intended to introduce at trial an abuse of discretion holding in the failure to give it continue that's right in the failure to not only did he not fail to say there's a necessity to put a stop to this and declare a mistrial the record is pretty clear he didn't even get the didn't go into that houses he says you should have done it you could have done it but you didn't so sit down and do your job as what the district court said there wasn't any analysis of wait a minute is there in need for a mistrial that's not the analysis the judge entered into at that day for sidebar it was only admitted lee somewhat well deserved dressing down of counsel here's what you should have done here's what you could have done but then it stops so motion denied it please the court katy bagley on behalf of the united states i'd like to address a few points made by opposing counsel about the mistrial issue  this trial you look at the record before the district court at the time the motion was made and at that point defendant has an identified any error by counsel that's so agreed that it was manifest necessary to stop the trial right then he identifies a few instances of the attorney fumbling with exhibits saying i don't have it which could also mean i don't have it in my hand it's not showing up on my evidence screen give me a nd to find it and those are all followed by mr o'connell then indicating that he did not object to the admission of an exhibit or did object  the one case where he says something i just got this morning what he actually says is a need a moment to look at it i think that's something we just got this morning which suggests a familiarity with that particular exhibit that he seen it and then there was some discussion about the screens there were some technical issues in this trial the issues relating to impeachment don't show what the defendant wants them to show so one is the example of an exact e mail during her testimony so whatever reason he had for not impeaching joseph are not impeaching make healthy with it it wasn't because he hadn't seen it mccully didn't write the email he didn't deny having seen the email defense counsel might have just thought it wasn't worth it so i take it that if if if if we were to were firmness and he has his attorney were then to go back petition on the ground that he got ineffective assistance of counsel he could do that but that's absolutely and i think bringing up the plaintiff the plea issue indicates why this is really an ineffective assistance of counsel claim it's also worth noting the defendant had three different attorneys during the course of the trial and the pretrial period lasted two years the idea that there were no plea negotiations conducted is absurd on its face in order to know why the defendant pleaded did not plead guilty we'd have to have some evidence and testimony from the attorneys who represented him and that's best done in a twenty to fifty five i think it's also maybe as a legal point that strickland still provides the framework for analyzing the mistrial and as you noted the defendant does not show prejudice his own attorney at trial said the evidence was damning because counsel on appeal says it was so bad he should've pled guilty this is not a case where the defense counsel's bungling or lack of smoothness in the district court prejudiced him in any way he lied he lied to everybody he lights of the v a he committed perjury in front of the jury there was no way he was not going to be convicted on this evidence and i would also note that the district court never found that the defense attorney wasn't prepared in fact in grants and denying the motion for the continuance he specifically found that counsel had been diligent had been preparing daily for weeks and months and during the trial at the moment trial he never said you're not prepared to bad he said do your job and the defense counsel went on to continue to represent mr grego if the court has no further questions i'm happy to see my time all right very well thank you for the counsel you know a little time left will rounded up to two minutes but i hope you will address the point that for the government's concerned what the what happened that you said occurred didn't happen it was quite different you know other lawyers involved there likely were plea negotiations in that this is simply not an accurate portrayal of what the district court was dealing with i'm sorry what was not an accurate report that you know this this lawyer had zero experience no background with doing anything indeed there were other lawyers who had been involved in the case i think a total of three lawyers are all together so this is this seems to fit into the same pattern not you but this is your client's approach is he just tells whatever thinks people want to hear is not necessarily true and it sounds like what happened at the trial court is quite different than he told you what happened well to be perfectly candid but the court of course only prepared these materials based upon what was evident in front of you do you believe your client i'm not going to answer that in terms of i disagree with the government that there was a finding by the district court judge that he was prepared for trial and i think that is abundantly clear at side bar in the district court and the government's trial government counsel's you are ready and that therefore there is no necessity to bring an end to the trial and it wasn't my intent to counsel him self that he had been preparing two to five hours a day for a period of weeks two hours a day for a period of weeks that's what he said for a i think there were there ended up being you know hundreds and hundreds and hundreds of exhibits so he represented in his motion to continue i don't think i'll be  what i've been doing a couple hours a day it's a rather radical step after that in the middle of trial in front of this district court in particular to approach and say i have no idea what i'm doing i don't know these exhibits there's things coming he says at sidebar there are things coming in i haven't seen we thank you for your presentation and in case the case just argued is submitted