conspiracy to distribute five hundred grams or more of a mixture substance containing methamphetamine and then as a part of that indictment it also stated that he had a prior felony drug  and quoting directly from the indictment here that is possession with intent to distribute methamphetamine on or about july seventeenth one thousand nine hundred two in the united states district court for south dakota  after several months of pretrial motions including several motions to continue and a change in counsel superseding indictment was filed on september twenty second twenty seventh two thousand and seven the only  change between the original indictment in the superseding indictment was a the addition of an alternative as to drug quantity that he could be he was also charged with fifty grams or more of pure methamphetamine so the fact of the indictment was primarily dealing with the section eight fifty one enhanced mint as well as i'll talk a little bit depending on time allowing about pretrial investigation going over discovery file talking about please remain some things like that with the client as to the section eight fifty one enhanced meant the primary argument we have there of course is that the a fifty one enhanced meant was defective and counsel was ineffective for failing to bring that sale or was it just possession that was a case a judge or bryant talked about in his ruling the case that the government primary relied upon sturtevant which also dealt with a mistaken state name in the a section eight fifty one enhanced meant so instead of meant the court of course held that to that was a clerical mistake which triggers the last sentence of section eight fifty one a which is a clerical mistakes and the information may be amended at any time prior to the pronouncement of sentence so the issue is and i don't there's not a lot of case law they really talks about talks about what  not but it doesn't really seem to address in my opinion the example of here where it's my my submission the clerical mistake to me it was i'm not going to give that up because i think there are some differences between this case of whether or not it's a clerical mistake based upon the sufficient the specifics given but also i'm for a minute that it is a clerical mistake the problem is that it wasn't fixed by way of an amended information prior to a sentencing what degree an objection made to counsel did not object and that's part of the ineffective assistance of counsel didn't even quite frankly i asked counsel trial counsel at the post convention relief hearing when realized that mr espinosa never had a conviction in the state of south dakota and he said well when i saw the twenty to fifty five petition he did not even realize that there was a discrepancy between the trial and from the superseding indictment which contained the imp section eight fifty one and handsome compared to what actually happened and what was set forth in the pre sentence investigation report is it your position that no prejudice is required the  case i don't know if it's in the briefs or not will be nine ninety eight f second five sixty three does talk about that this is not a harmless you don't conduct a harmless error analysis that would still put some potential prejudice responsibility he wasn't even a muslim there was the attorney knew there was a conviction in another in a different state correct it was a given that was the conviction that the government was identifying correct said he was on notice that the government was seeking to enhance his students based on prior conviction was he was on notice that there was an intent to seek the enhanced meant what he was not on notice of by way of counsel pointing out to him that there was a mistake in that enhancement and into evidence he stipulated to it out side of the presence of the jury but again how on the i can stipulate to something this and even correct without having a discussion about that with the client first i think is just a pattern of discussion with counsel about it number one number two is to the trial itself there was no discussion about witnesses for the defense and third there was no discussion about plea bargains and of course that's a subject of the some of the supreme court's most duties of counsel during the course of legal representation to discuss potential plea offers of the client the problem here the factual wrinkle is that the council did not even actively seek a plea off r for the client in this case those cases talked generally more about a situation where you have a and that there is a plea offer pending and offered the coun his rejection of it and the supreme court found that that was ineffective well here you take a step back from that i don't think there was an actual plea offer made counsel didn't even talk with the client about soliciting a plea offer or inviting that was i think clients of the counsel's testimony at the post conviction relief hearing the problem with that is without even without knowing without soliciting a plea agreement and discussing again having that kind of informed consent type of discussion with a client that will be conjecture it may be any overtures or communicated any willingness to cooperate with the government i think that that was discussed what counsel i think maybe of part of that same testimony that judge by is referring to did discuss the possibility of cooperation is far is that this stage of the proceeding i think that's probably too late if that's what you're asking generally these cooperation we've got to move pretty quickly on it or else the information becomes stale really and those are the basis of the ineffective assistance of counsel claims going to reserve the rest of my time for a bottle thank you morning your honour's my name is jack lammers i am an assistant united states attorney in the northern district of iowa i'm in the western division in the sioux city office i represent the united states in this case if i could i would like to address a couple of the points that your honour's raised with  mr dan first of all the question i think was raised about whether or not cooperation was pursued and i think the testimony from mr espinosa original attorney by the name of joe flannery it was mr espinosa position that this was a trial that he was on a trial footing all the way he didn't want to cooperate he didn't want to plead guilty and in part based on the fact that he was advised by counsel that he was facing a twenty year mandatory minimum he was facing a twenty year mandatory minimum fee went to trial was convicted he was facing a twenty year mandatory minimum if he pled guilty unless he cooperated and mr espinosa rejected the cooperation there is simply no ineffective assistance of counsel in regards to those grounds because the defendant just was never interested all the way along in regards to judge smith your question about whether or not there was an additional defect in the eight fifty one notice the fifty one notice listed the correct day the correct date are excuse me the correct year the correct offense of conviction and listed the correct sovereign united states it failed to list the correct state where the conviction occurred stated south dakota instead of the northern district of iowa but if you take a look at the timeline the defendant simply can't show prejudice here initially the defendant was indicted in february i believe february twenty third of two thousand and seven in february on february twenty seventh of two thousand and seven he met with mr flannery at the initial appearance at arraignment at that time the indictment was read to the defendant formally on the record judge noted that in the scuse me your honour's i believe that's at the criminal docket document number nine indictment was read to him and then mr flannery testified at the twenty two fifty five hearings that i met with my client on that day i met with him at the initial  in february on february twenty seventh mr flannery met with the defendant and said you've got a prior conviction you are facing a twenty year mandatory minimum i'm paraphrasing but that his testimony is that he explained it to him and explained the twenty year mandatory minimum to him on march sixth of the same year there's a detention hearing that attention hearing is in front of judge toss during the detention hearing the testimony is given that the defendant had a prior felony drug conviction that he was still on probation for that prior felony drug conviction and judge hughes judge dos use that in part to determine that detention was appropriate and in his order of march sixth and this is at the criminal  docket sixteen judge baugh said in addition although the defendant has significant ties to the community he is facing the possibility of twenty years in prison so the defendant was put on notice by his attorney mr flannery the defendant was put on notice by  when he read the formally read the indictment to him and he was put on notice by judge austin his detention order that he had a prior felony drug conviction and that the government was seeking to enhance his sentence based on that prior felony drug conviction and in fact it has only one prior felony drug conviction i believe that sat in the pre sentence report i'm sorry i don't recall specifically what the paragraph is but he has one prior conviction this isn't a situation where the defendant had ten prior drug convictions and was unsure as to what could he could reasonably be put on notice in regards to he had one prior felony drug conviction that he happened to be on probation for when he committed the second drug conviction so  simply is nothing that shows that the defendant wasn't placed on notice didn't know what conviction he was he was on notice for and had the opportunity to challenge in fact of the eight fifty one notice is i guess basically three fold number one to notice the defendant of the prior conviction to notice the defendant of the enhanced penalties of the prior conviction and to give the defendant an opportunity to challenge the prior conviction defendant in this particular case clearly was on notice of the prior conviction it was given to him i guess nearly a year before he was actually tried he was put on notice of the mandatory minimum testified at the twenty two fifty five hearing that they specifically explained to him that he was facing a twenty year mandatory minimum and the defendant simply never challenge it that second prong of the fifty one notices or the second part of the fifty one is that the defendant is deemed to have waived those challenges if he doesn't raise them he never raised a challenge in regard to the question asked as to prejudice the defendant simply can establish no prejudice here i would not grant that the severino we have a very similar factual situation in that particular case a defendant had a prior drug conviction from i believe it was rhode island at the time of the plea hearing the fifty one notice was  think in fairbanks even though the fairbanks alaska even though the plea took place at a different in a different area counsel knew of it defendant knew of it agreed and and pled guilty based on the eight fifty one notice even though th was wrong they believed it was massachusetts or it was listed as massachusetts but it actually was rhode island and judge kozinski determined or in his opinion said the notice wasn't effective this isn't we don't even have to reach the clerical error sort of exception for the fifty one notice that it wasn't effective the defendant in that case also only had one prior drug conviction and the court said that he was put on plenty of notice this gave him enough notice to do what eight fifty one requires and i would submit that's what we have in this particular case here it's very factually similar counsel has focused on the fact that an amended notice was not was not filed prior to the sentencing hearing under the severino case an amended notice was never filed either and the court said it doesn't matter we don't need to reach that particular issue the notice was constitutionally sufficient as is even with the mistake again back to the prejudice prong even if this court were to determine that the notice was insufficient defendant cannot establish prejudice because the remedy if the court were to remain and is simply to file an amended eight fifty one notice and that's what sort of an allow clerical mistakes and said that the mistaken name or the excuse me this mistaken state in the fifty one enhanced meant is able to be amended any time prior to sentencing if this case was remanded a simple amendment to the fifty one notice could be done in the defendant still faces the mandatory minimum twenty years in prison so there simply is no prejudice in this particular case in regards to i guess the other claims of ineffective assistance of counsel i would simply state to the court i believe judge bryant has has correctly dealt with them the testimony from both of what was in the discovery file that he went over it with the defendant mr eastman testified that he went over the discovery with the defendant as well essentially this is a credibility contest and the district court apparently granted or or gave to the testimony of the attorneys as to the fact that they did go over the discovery file with the defendant and did explain to the defendant what was in the discovery file in regards to the other claims again eastman spent they went through is billing statement that he spent a number of hours interviewing a number of hours investigating a number of hours meeting with his investigator who he hired to talk to the witnesses and significantly the one witness espinosa claims is that somehow or another there would have been a they could have accused mr davis of planning the methamphetamine that was recovered from his house because she had previously been in the house that day that information came out at the trial different way let's go after the conspiracy angle of this trial and as this court knows we don't look at the tactics that counsel uses in hindsight in this particular case mr eastman determined again after consultation with his with his client that that was the most appropriate avenue to to attack the case and it makes sense the defendant was seen in a hand to hand transaction where he delivered two ounces of methamphetamine to jaclyn monk law enforcement witnessed it law enforcement picked up miss monk immediately after that that transaction they recovered the two ounces of methamphetamine from her glove they then get a search warrant of the defendant's house they find three quarters of a pound of methamphetamine secret compartment money so it makes sense for counsel to say well what can we what can we attack here it's a very strong case what can we attack here they attack the underlying conspiracy that is the kind of judgment that counsel makes that i guess courts are ill equipped to look at in hindsight and determine that somehow or another a different tactic should have been should have been pursue in regards to any other claims of ineffective assistance of counsel defendants claims have been contradicted by the testimony of the attorneys it appears that judge o'brien has credited the testimony of those attorneys and there simply is no  no prejudice that can be established or speculation is not enough speculation that they could have kendra davis come in and admit she planted the methamphetamine which seems to me to be a fool's errand speculation as to that it is simply not enough to establish a  well if at all if if if it only were i think again i'm going to go back i'm going to start off by dealing with the topic that was discussed at the end of his argument regard to the testimony of ken or davis well this is one example where there isn't any dispute between the testimony the twenty five hearing ms davis did show up at that point of fifty five hearing she  to the are the evidence so clear as to the conviction that's the kind of detail in the defense attorney should have been should have been doing before the trial investigating witnesses discussing it with him so then he could make an informed  e can make an informed recommendation to his client as to what to what to do in this case and that goes back to margaret cho what she would have to us to to that she been investigated in and called as a witness i think her to testify beyond the fact that her statement that she was not contacted by a counsel for the defense the point i'm making isn't so much i think i know understand where you're coming from the point though is that given her testimony simming everything she said about my client was true for a minute about what she saw on the the with regard to   that needs to be discovered by the attorney before trial told to the client before trial go through the discovery file in detail make those kinds of inquiries and then at that point an informed decision can be so with that and that also ties into the a fifty one notice too about the fact that the council didn't even know about it until the post conviction relief action just reveals a just a lack of investigation into the details of the case with that unless you have questions that's all i have for today thank