good morning me please the court jonathan feinberg for the public robert holmes i just respectfully request three minutes for rebuttal that's fine because of the charges that were at issue in this case and because of the manner in which the district court instructed the jury on those charges with the agreement of the parties this is this unique and extraordinary case where a strategy that was employed by a trial lawyer who by all accounts has a reputation for being an excellent driver he's appeared before so i would agree with that he employed a strategy that in many cases would correctly be perceived as utterly brilliant but in this case that's just that's correct but in this case  but if it's strickland you have to show prejudice right fully aware of that yes and in this case i'm just working backwards then we'll get back to the what council did a trial based on the statements that were made by mr holmes to agent that he was the gun he was one of the guns with regard to this drug trafficking group has any in effect convicted himself of one i would suggest you your honor that the government disagrees and the reason that the government disagrees is that they they brought in these three cooperating witnesses very risky move and they would not have done so if they believe that they could be they were going to lower i mean who knows if it's also one that gets into government trial strategy which is a separate issue but ultimately i would suggest you can read a lot into that the fact that they brought in these witnesses was an acknowledgement that the statement didn't get them there and we characterize in our brief that the statement that the way that the district court read it in the way that the government characterized it is an overstatement of the scope of what the statement says in fact there are certain things that mr holmes talks about in the written statement for example  they thought that i was the gun referring to other members of this group the i thin street group when in fact he was not admitting at all that he wasn't if you carry a gun yeah host of other places here he would have considered as being very problematic for the case however there was a very creative way to get around the problems of the statement and the trial counsel did that something i should do i should step back and talk about one of the claims that was played and litigated in the district court but not included in the appeal one of the claims we asserted was that trial counsel had introduced through his cross examination evidence that was otherwise inadmissible specifically evidence that mr holmes had a previous federal conviction when i first got this case it has i pled that claim that all of a sudden this prior conviction comes in when there was no basis for coming in before trial counsel's cross examination which opened the door to a trial counsel then said at the evidentiary hearing at it is in front of judge dallas l i did that for a reason i wanted to bring that prior conviction out because it allowed me to make the argument to the jury which you did that the prior conviction taught mr holmes the game of cooperation it taught him how you can reduce time in your sentence the argument the trial counsel they need is that the statement was an embellishment a very creative argument and because the trial counsel's testimony on that issue that's why i didn't raise this cross examination issue in the court of appeals here because that seemed like not only reasonable strategy seemed like excellent strategy for dealing with a confession characterizing it as an over embellish when an overstatement of exactly what mr holmes involvement was in this case so although your honor i acknowledge that the statements problematic there were ways to get around it and ultimately on the question of prejudice in the stricken context so judge mckee's language in the german decision this is not a scrutinising analysis was their own reasonable probability it's not the most stringent analysis in determining whether there's a reasonable probability that but for counsel's conduct and what if the result isn't the thing that you really have to show is somehow we would say that chronic outlined as to how the statement can be confronted but yes i would agree chronic makes it a much easier case a much clearer case for the appellant for the position where and that's why we raise the issue and i think it's appropriate under the ninth circuit's decision informs in the ninth circuit says if you can see all of the issues that are presented to the jury in the case that's a denial of counsel counsel hasn't contested the evidence at all no matter how skilled counsel's collateral struck joint you know in this case with respect to for example the rest of the trial and the three witnesses i mean i thought the idea behind swanson and chronic is that in effect he got no representation here what you've got is counsel doing a  pretty some heavy lifting at trial and then at the closing made statements that appeared to give away the candy store because maybe counsel and maybe the court perceived  realize that but otherwise it looks from the transcripts that counsel really he was his usual self well there are two points the first is that with regard to chronic and swanson's application of chronic i don't think there's any suggestion that counselor sensually has to stand up and say you got us my clients guilty there's nothing i can do i think swanson's application of chronic suggests that if the practical effect based on the context of the case and the context of the argument is that there is no defense and that's a denial of counsel and that's exactly what we w a question yes you can return what would be seen to be legally consistent verb and why because the supreme court of the united states i know that's what i mean this guy sitting there multiple situation and you say he's got a chronic situation no counsel and the judge is no question and we know that happens and we know that that's not a basis for appellate review united states versus now tells us that but that doesn't mean that it it that counsel strategy which in essence asks for a jury  love that is a reasonable conclusion for counsel to reach until the point when he sees the court's charge and agrees to the charge and that in fact does it does happen but i have yet to see a case the government doesn't cite any case where specifically requesting an inconsistent verdict in a situation like this which walk the defendant into a life sentence the equivalent of a life sentence four hundred months in prison mr feinberg you do acknowledge that his concession was strategic and it was part of trial strategy i do and i can't fight that because he said at the evidentiary hearing that this is exactly what i wanted to do it's exactly what i hope it was if based on that acknowledgement how can it either be chronic or how can it be deficient representation because i would suggest that the strategy the way i'm interpreting it in the way i'm asking the court to interpret the strategy the strategy is to to to raise the defense so we cannot i don't think the court can find on a fixed record or cronic would permit the court to find that that the oem grella of argued counsel i will acknowledge in in fact if you go through the closing argument you read the first part and counsel's first words of the jury are in fact if i can just read to the court from the appendix page nine fifty one counsel starts off his argument by scent essentially presenting the jury with two choices he's talking about the standard of proof a page one fifty one and he says the question is the standard of proof that you folks are going to have to apply to determine whether or not you should convict my client of count one and count one twenty or just count one twenty so he's starting from the very beginning presenting the jury with two options number one convict him of both or number to convict him of just the count s seventy nine the very last words that counsel says to the jury you should find him not guilty of the conspiracy in count one and if you're going to convict convict on count one twentieth if there was a full stop after you're going to  essentially the charge of possessing a gun and further that of the drug conspiracy on a specific date which they were involved in the shooting it's that you could have a compromised verdict if you give away one twenty one twenty that you could somehow give away one twenty but still be held  but to be to be fair to appellant of course the district court didn't struck the jury in his original instructions on count one twenty that in order to convict on count one twenty you have to find that he was part of the conspiracy in count one and if that's all the district court said on that matter perhaps  have a point but of course that's not all the district court said he continued in his instructions by a law breaking on what it means to be a member of the conspiracy and whether the defendant in fact participated in a conspiracy in by doing that he incorporated his count one instructions on saying is that no making no sense well that's right your honor and if i can just go back to your original question of course the district where didn't just incorporate his count one conspiracy instructions into his count one twenty instructions if there is still any doubt remaining as to whether or not the  jury could have convicted as a count one twenty without convicting as to count one the district court cleared it up when he answered the jury's question during deliberation the assets specific question now whatever reasoning i mean the appellant chides the government for raising this now in support  argument but whatever reason was behind the district court's theory and the government searing all parties at the moment the fact is the jury was instructed at that time that they could acquit on count one and convict on count one twenty t simply is not a chronic case your honor among other reasons that the defendant rather counsel how would you distinguish the sponson case from this well your honor if i could just quote from swanson in that case a trial counsel said in this case i don't think it really overall comes to the level of raising reasonable doubt you also told the jurors that if they found the defendant guilty they should not ever look back in agonized whether they had done the right thing this doesn't even come remotely close to what happened in swanson or any of the other cases that the government sites in its in its brief in fact what the appellant here is asking this court to do is to be the first court in the country to hold that the conduct complained of here amounts to a confession of guilt now of course there's nothing wrong with being first in any matter if the facts require but this is not that case your honor this is a far cry from anything the trial counsel did in any of the sister circuits that i've discussed this issue there appellant that refers to the comment if you're going to convict convict on count one twenty well even a parent would agree  that have to consider that statement in the context of the entirety of the defend the trial counsel statements during closing argument and indeed the whole trial i don't think there's anybody who sat through that trial and as i said your honor i was part of the government's trouting that was a word or if it was simply me in my brief but a temper defense to count one twenty as opposed to the more vigorous and spirited defense that he offered count one in that of course was a strategic decision given the more serious sentencing consequences that were attendant well  won there was a possible i think it was a guideline sentence of life given the murder that took place of grayling kreg and in the count one twenty eight of the statutory maximum of twenty years in bishop well that's that i guess that  i think your honor if you know if you look it's almost like what happened here is he could see that this was a really tough case we surely did it wasn't pled out he went to trial and he's think you know what i'm just going to go up and swing for the fences and if i if i strike out i strike out that's the best i can do because a single double or triple link will work and that's in that's exactly goes into the if we're talking about strictly now as opposed to chronic we're talking about the trial strategy here a bit again the parent is asking this court to find that the district court was clearly erroneous because this was a factual finding that the district court found that he did not concede guilt as a count one twenty he's asking this court to find that that finding was clearly erroneous of the state i just read looks like a concession of you haven't won twenty well your honor i think if you look at it in the context of the and i look at it in context unless you're agree with you he got out there even though i do agree with the prosecutor even though he didn't get out of the car that's not a defense conspiracy is agreement to do it but he went out there he did go out there that's the essence of the or the just the essence of the conspiracy is the agreement and that trial counsel attacked with great gusto i believe because what he did was he pointed to kareem cloud and he was one of the shooters actually that took part in the murder along with jughead and shaky christopher  smith and christopher williams even cream clown testified he didn't think it was going to result in a murder he thought things went too far so what trial counsel this instance did was he said please in general the jury even the government's cooperated witness the one of the shooters didn't think there was going to be a martyr that night so how can you find that my client participated in any such agreement no agreement no conspiracy that was the essence of his it attacking of count one twenty i find and that was an interesting defense now as far as the  and said during his closing that just because he admitted that he was a gun he didn't admit that he was a gun as part of the the i block for all i think if that had happened your honour's i think trial counsel would have been mocked mercilessly during his closing but instead what he did was he used that statement as mr feinberg alluded to he used that statement as a sword you said well that the defendant was used to the culture of cooperation he thought that he could make himself appear more attractive to the government so he wanted to embellish his role so said he was a gun he said he went to mexico he's house where everybody was loading the bullets and wiping them down and we're going to go tear up the block he said all that but he didn't really mean it he wasn't really a part of it because he was trying to make himself appear more malleable if we find that these pointed out a number of sections of the transcript which are stronger concessions than all acknowledge i quit my brief in fact rereading the closing argument just over the past couple of days i noticed a couple of points including the one the judge emperor made where counsel had said specifically referring to page nine seventy eight of the appendix when you put yourself in warren's shoes as i said before it looks like i mean you're at trial and you're saying yourself my god why don't we just put it out i mean this is this is ridiculous and i think he did say that and so he's he's he's really you can call whatever sports from you want you know the golf or the home run the hell mary pass he whatever he could because he could see that everything was stacked against him and i think that is accurate however i would suggest that the result the path that he chose was improper and i'll be honest i've spoken to mr warren he and i are good friends i've spoken to him about this case a number of times and it we've had very interesting discussions about what he could have done and what he could have done i think actually is is pretty obvious so obvious in fact that i didn't include it my brief he had great arguments on count one it's particularly the statement by alan kane who is the star witness the government called mr cain had said in a previous trial bob holmes had nothing to do with us that was terrific impeachment in fact mr warren characterized it in his testimony as kind of a once in a lifetime piece of impeachment which undermines if you have a chronic no it doesn't because if that defense is made the next logical argument is to use the court's instructions and say count one has not been established you can't be found guilty on count one twenty if you're also guilty of count one so therefore trial counsel very well could have said look i'm not going to argue to you about the facts of what happened in fifty and fifty if you will as i'm not going to argot you about count one twenty all i'm going to tell you is that they can't prove my just respond to that question and there's no question that this was a difficult case for trial counsel to defense attorneys in federal cases are often faced with the issue how do you deal with very difficult facts when you may be arguing for example in a it essentially are jurisdictional issues yeah this was a homicide but it's not a rico homicide that's the argument difficult as it may be for a jury to swallow that's the argument the trial counsel had there's no drug conspiracy here with no drug conspiracy following the district court's charge unless you commit that conspiracy there's no conspiracy on count one twenty that was the defense that could and in all honesty should have been pursued and for that reason i think