united states versus garcia and power and he was excluded from a hearing on whether his counsel of choice would be disqualified and the second of course occurred when we contend occurred when the court decided in fact to disqualify as counsel the choice and beginning with the the first issue that is the exclusion from the x party conference on whether the law firm of michael raines would be disqualified as powers counsel the standard is clear kentucky versus spencer if the presence of the defendant and his counsel could have contributed to the fairness of the proceedings of the disqualification proceeding  enough the point here is is the first question did counsel the right to counsel that did they have a right to be there let's put the question of prejudice aside for just a moment could they have contributed to seven certainly raised is in my mind a significant question of whether that potential conflicts here the government was never going to call those seven witnesses and if defense counsel had been in that in camera hearing they would have contributed enormously so that we know the statement is not through but have they know who the government's going to call because of what they kind of when i was to practice often i didn't know for sure who i was going to call till i saw how things developed that's right what was the district court in titles to a statement cracked and how do we measure potentially run or we would we would measure it but the government made statements like this officer to voters has made an inconsistent statement about whether powers initiated a fight that i examining people that he has confidential information about or and i think the court the district court made the comment doesn't have to wait to see the train grac and the standard under wheat is pretty broad latitude to the court to prevent having a whole trial and then when you're on rebuttal you have the exact same situation and then and then the defendant can raise i see at the end of it well let me get to that your honor because you're on them the merits of the disqualification but the question before me now is they had a play rule six the moment constitutional right to be at the session what difference did it make that they weren't excluded the answer to that question is that the court had  reasoned judgment about whether there was a likelihood of conflict and the only way he could do that was listening not only to the government's theory on was whether there was a conflict but listening to the defense theory and why there wasn't a conflict and the reason there wasn't a conflict is that did the court have a right to know what we what these statements were didn't have a right to assess whether any of these people were really likely to be government witnesses why did the government not call any of them except one that one month sign of what the government said in the in chambers was well we will probably call him because we want to get him out there before the defense gets him out there investigated for possible crimes government councils probably optimistic that some are going to some of them are going to roll over on the others in order to get breaks and fearful that some of them are going to go south on it after initially indicating that they're going to roll over as these things happen all the time and multiple potential the pending cases if you want to i want to address those concerns as as as long as i'm sure i satisfied the first question you're asking me questions about whether the disqualification order was correct the issue is not i'm addressed and is there is a a great deal of information that this district court judge was deprived of because defense counsel was not present at the in camera that's the prejudice ok let me just give you a specific example this district court judge did not know that the prosecutor statement that the voce had given an inconsistent statement from his grand jury testimony and in fact had  once that power started this fight was fought it was absolutely utterly false it had no basis of fact in it and the only reason that the district court would have possibly believe that statement is it didn't get both sides of the story that's the they are flatly wrong the other thing they said is things like well we think some of these people you know will will will change or they've given inconsistent statements or they could be reached the fact of the matter is defense counsel had all of the someone how do you know what they're going to do when they testify in court well ok because anyone that stand trial work now is that you know i think we fast sat there and our jaws dropped when someone says something that we had no idea about i'm about to address that you're on but the question is was it was it wrong to hold them in camera hearing it was did it make a difference did it deprive the court of relevant information it absolutely did so what i'm saying is on that basis alone you have a reversible error now let me get to the question that you all raised which is let's just say that this record had been formed in a proper and what's the truth of the past let's say the present record had been had been obtained without having an illegal unconstitutional ex party conference then the question would be is the judge in the judgment of the court right and that this i stand around and there is only the government has no right to sue in the having the defendant get in effect of counsel and then come out here on appeal and complain about it right that's it's interesting it doesn't have any right to get greater access to witnesses than it would be if they were represented by one lawyer or so the issue is when that by the time the court decided this was there is still a danger that the defendant would be burdened with a real conflict of interest by his lawyers and therefore maybe the government would be cheated out of their conviction  this what we'd says is that there's a presumption in favor of the right to counsel choice ok if you can't take that away you have no discretion to take that away unless there's a real chance of a conflict what you know it's the only chance waive the attorney client privilege that happens all the time it's done they've had their privileges done given these waivers complex it's different parts is different though but but but the only conflict  allowed radians to represent mr powers and i came up here and said given those waivers by by the witnesses and the waivers by powers that raines had a conflict of interest and somehow i was deprived of my right  interest i submit that at the end of the day what this is the effect of it was simply to remove from the case the most experienced lawyer who represents correctional officers in the state and that there was no ballot in interest that the government when when it responded to our past the car claim look at your brief they did their grief they did not cite or discussed one past the guard case what they attempted to do was say that n and the airport instead of following all of the cast of our law which says they have to prove that they had an independent source for this october second statement they simply say the second statement was s now the critical fact that you left your honor is that at the first interview they say you must testify it's compelled you'll be fired if you don't and by the way your testimony will be used against you to impeach  say oh by the way we were wrong everything you said two days ago you're home free can't ever be used against you don't worry about it if you're here you're worried about what you said go home they don't say that and the second thing they do is they say now l down and let's go over a line by line what you said in your compel statement and as justice souter says upon hearing warnings only in the aftermath of interrogation and just have to make me a confession s so the supreme court has said if you lean somebody to believe you can give more random warnings but unless you clear up the fact that what they've just said can never be used against them you haven't through word of the problem what is  absolutely and here's the beauty of it we win under the defense in missouri vs siebert because justice o'connor was the lead on the chief justice and and justice thomas says well you know we think your test here leading the witness through it line by line which of course is what justice kennedy emphasized as well he says you need specific corrective measures the only way that this statement becomes admissible under missouri versus sieberg is if the officer says you know what jose we screwed up on saturday or three days earlier we told you that we could use that against you and in the wording is literally don't think for a minute that this will be used against you impeach we screwed up you're home free you don't have to worry about it and the only reason i want you to remain here is if you have decided independent of that to give a statement and by the way i'm not going to take you through your prior statement and make you respond to each thing all your time that we will have sixty seconds available for rebuttal thank you which is gained by reason of such statements can be used against you in any criminal proceedings let me point out though with regard to the statement about impeachment it was technically correct but incomplete in the sense there is a specific provision of the california code california government supposed thirty three zero three after three which pertains to the use of compelled statements by law enforcement officers for impeachment purposes in civil proceedings now is that when a few minutes later when the sororities been made the correct clear and unequivocal statement could not be used whatever confusion may have existed but there's a very important point that was that was on september twenty nin second interview why he requested the interview by agent works piece and what he wanted to say and he none of those explanations have any relationship to some fear that somewhere down the road he might be subject to damage in cross examination specifically he says that i want to come forward and expose wrongdoing i want to come forward and tell you that there are what i consider dangerous conditions at the prison because of the free flow of alcohol  low morale that might get an officer killed but i didn't want to do it in front of captain smith and lieutenant recycle us on september twenty ninth because mr garcia saying they were involved in some of the  and i want to make very clear especially in response to the supplemental authority letter the government is not taking the position that the standard here is identical to voluntary but  as the intervening circumstances passage of time different location and so forth and consideration of any possible misconduct by the initial questioning officer those factors in combination can show that the linkage between the two was the fictionally attenuated so that it is considered legal purposes under the fifth amendment as being independent and that's what we have here and the fact that mr garcia aggressively sought out the october second interview was highly important and it's one of the reasons along with the passage of time why this case is very different from missouri versus where the supreme court essentially sat for all intents and purposes that was the  interrogation they intentionally decided to withhold miranda warnings get her to can fast took a twenty minute break came back to her in the same location thing in the shade the contact came around and then started questioning and the the basic point whether t con attack and demanding to speak only with aging or cheese essentially indicating that he felt comfortable with aging or cheese because he expressed only declined the offer that made him or she's had get it admitted at the federal trial if you talk a little bit about the lawyer if you yes the disqualification is to you first of all i want to make very clear there was no misrepresentation by the prosecutor in that case with regard to  one of the seven witnesses that we were concerned where and who actually did testify at trial and testified favorably to the government and was cross examined by powers attorneys to illustrate very clearly the conflict that existed we need the prosecutor here accurately predicted that he would testify at the time mr man's on it was saying i recall officer jones coming to the control booth and talking with between sounds and schembri but we think he's not telling the truth when he says he didn't hear anything because why would someone remember something that a conversation occurred so many years before if they didn't remember something about the substance then when  to by the time of trial mr mims on and in fact did say he remembered something he didn't remember the specifics but he remembered it had to do with rumors that an inmate was going to be attacked on the yard which is different were that so far in advance of trial they couldn't make an intelligent decision about what would play out and i think situation with joseph missouri and it will straight to the point he's committed a declaration spanx i don't have any information that illustrates based on the declaration that manzano submitted that the judge was quite correct that these individuals couldn't necessarily make an informed judgment in the district court was concerned and i think it was a valid concern since they may not have the full picture of about how this case is going to develop they may decide to withdraw all their waiver and i know of nothing that would prevent them if it became clear that things weren't playing out as they expected to withdraw all the waiver at that point in the court and prosecution was concerned about we get six months down the road trial starts and the whole thing blows up and there has to be a mistrial another point with regard to these witnesses were a number of them were alleged to not only be eyewitnesses they were alleged to have and harassed inmate black took him to the gym where powers and the votes were and that powers and some of the other officers beat michael black up so clearly there was a potential that some of these for other individuals strategy a doesn't work and they might say well let's try strategy b which is the sort of suggest try to shift the blame to some of these other individuals who are involved in the answer that there would be some inhibition in doing that because those are their former clients and  so even at that late date during the trial we were trying to call him to testify about the sensitive finally on this point obviously it didn't the situation didn't develop exactly as the prosecution predicted but the disqualification motion occurred two years before nothing works as everyone hopes well that far in advance and in fact that the fence counsel in opposing this qualification motion stat your honor we're we think it's almost certain that we're going to call it seven so both sides are saying these are key people we think we're going to call seven the other side's going to call seven it didn't work out that way they called two we called want to try to call another who invoke the the statements which i previously made to the firm and with my attorney clear the privilege i understand would be an adverse witness term would have to impeach or discredit me to represent my powers interest the question is what  conceivable valid interest of my powers as that's the only thing that matters could be served by kicking his counsel of choice or when given that waiver his counsel is if anything better equipped to aggressively cross examine clear the government never never made that contention and they never had had they made the contention this is the problem with x party proceedings the response to it well could have been this is a completely father phantom because i'm never going to share it with the district attorney's office which is absolutely imprimis of all under under cast the guard having said that they then say it can't be used as direct evidence it can be used for impeachment purposes in court we're not go tell you that anything being said is not going to be used against mr garcia obviously it's in the criminal context they just told them that everything's going to the d a s office so the issue is if they'd told them this would be used against them what would justice kennedy sa impression they told lies fear they could use the statement against them and then of course he comes to them and wants to clear it up after that statement that says hey you don't have to be here everything you said is done it can never be used in a criminal proceeding the second statement can't be voluntary