good morning your honor allison adams for christine daniel and mr mcbride mr martin bright if you're also he will be handling the rebuttal so i would like to reserve approximately three minutes rebuttal your honor is this case is a deprivation of counsel case that's what we have we have a complete deprivation of counsel at a critical stage of the proceedings and then we have an involuntary for read a waiver and stacked on top of that we have an involuntary waiver of the right to have a jury determine the amount of loss in the or the or the government's brief government question whether or not there was a right to have a jury determine the amount of loss the issue here is that the judge solicited such a waiver from counsel the judge asked her if she wanted to have the jury determine the amount of loss and when she said i don't know your honor you know what would  jury do the judge probably should have said to her it would have determined a factual issue that could affect her sentencing but the court didn't do that and so she did not know what she was waiving when she gave that up there are a couple of things i wanted to address that are not in the briefs the first one is that i did get confused between count eleven and count twelve in the  insufficient evidence argument the argument doesn't change the reason why i got confused and i discovered this again when i was preparing is that there is zero evidence as to mr randolph that there was any corrupt persuasion there was not even a conversation between mr ramos and christine daniel concerning any testimony to the grand jury any testimony to the court or any conversation with the authorities the fall of the if it was false of mr ramos is representation that the payment was a donation was an item on his and people in in the defendant's office saying it's a good idea to put it has donations not i'm under investigation you can help me out not i'm trying to show that this is not a taxable event but just a donation nothing indicating if anybody asks you say a donation nothing indicating if you testify say donation it just isn't there so when i was writing the brief and when i was reading the record and when i was preparing for the case and for argument i simply cannot believe that he had been convicted on that count so i apologize if it misled the court and that's why i addressed the wrong countertenor choir's issue she yes you said yes but why isn't it enough when you're no you're under investigation and you know tell me this is wrong but you know that there's at least a possibility that this patient you're dealing with may in fact be called either to testify before some medical board or before the grand jury in a criminal case and you sort of make clear that what we need to start calling these payments you're giving me something else so clears be sure from now on to ri this false thing on your checks you don't think that conveys to the patient as it did here that oh you know what i want to help out my doctor she's been really good to me she's telling me that me that it's important that i now call this so lo and behold when he shows up for the grand jury that's what he calls that doesn't strike me as a preposterous case at all no just just law free particularly in the context of the fact that she was acquitted of the case involving the calibers where there were conversations about and they happened after they had testified that there were conversations about the grand jury testimony that was key there is that the jury thought because the conversations occurred after the witness had already given whatever testimony they were going to be called upon to give she was going to get convicted there but here it happened before and so why wasn't the jury entitled to infer that she knew that this patient she was dealing with who had not yet testified but was perhaps going to that she wanted to influence what he would eventually say because there was no evidence of any discussion involving testimony or investigation where there was it that she was under investigation you think to be convicted she had to tell the patient in explicit terms listen i'm under investigation and if you put if you don't put down here that's a donation i could go to jail and so please do this to help me avoid prosecution i believe is the charges corruptly persuade somebody to testify falsely or give false information yes you have to you have to face persuasion that is the kind of soft she set it up he did it he followed throw she set it up me just persuasion have to have to be something you know rob got you on the ground with my knee on your throat or something like that i think at least it has to rise just distraught to if anybody asks you or if you're if you're investigator i'm facing this it has to be some kind of connection something doing which you set up the deception by asking him to do something that she persuade him to put that on the check  he didn't put it on there just out of the air that's true i'll go to the source waited it to put it on the check but she didn't persuade him she didn't tell him the checks were going to be examined by anybody else she didn't tell him when of course not she wouldn't say hey look the you know i'm asking you to commit a crime because the grand jury is looking at the score she wouldn't tell about but she set up exactly what happened falsely not just to put something on the whole the whole point of this was to create a false piece of evidence was i did but the expectation wasn't that anybody else was i don't know what he thought or she thought the purpose of putting in the mole on the check was she may have thought that she might have been audited again she may have thought that it was a matter of keeping records but i don't think it had to do with anything that he was going to say i don't see a knowledge or expectation that he was going to testify or be investigated you're down to your three minutes or less like ok have other questions then you can reserve the remaining time for the reply i would like one more minute which is that that what the court should keep in mind is the enormity of the deprivation of counsel and in this case that's my interest while all of this happened the desperation to counsel and a very critical stage when the mr banjo had before his daughter died after reopen the defense case this daughter died the case was was continued for a very very long time and then it was time for rebuttal and closing argument i think it's extremely critical point in the wrote a donation could the jury infer that she did that with the intent to either persuade him to change his grand jury testimony or to prevent him from reporting her to law enforcement and clearly intent can be inferred from any number of actions and given the fact that she knew she was under investigation because her residence and business had been searched prior to this time and because grand jury subpoenas were being issued there clearly was a basis for the jury to infer that that was her intent and in fact it was successful mr ramos to initially give false information to the california medical board investigator and to the grand jury which he later corrected so there was more than sufficient evidence to convict on a witness tampering count well i think the real issue in this case is the issues that relate to counsel there are two separate sixth amendment rights that are implicated here the first is the right that all defendants have to the effective assistance of counsel and the second is the right to choice of counsel for those who can afford to retain their own counsel  you just to cut to the chase in my own thinking yes am i right in thinking that in order to affirm here we would have to conclude that the district court was right in i think in questioning the credibility of defense counsel's assertions that he couldn't continue essentially what i would say is that the real issue in this case is the court finding that defense counsel could give effective assistance of in his circumstances really could not continue i mean certainly not that the folks i've known who've lost kids who are professionals they cannot go back to certainly not trying a case within three months took much longer so i guess what i read from this record though is that the court said but you're trying these other cases and i guess as to why you can't try this much and so it seems to me it all comes down to whether the judge was right in saying well i just don't believe you when you say that you can't do this particular case i agree and i agree absolutely that that is exactly what it comes down to and that's why this court should defer to judge him and i would also say that i do think even the cold record supports judge him ones of him and finding and that's why i would talking about a very experienced judge who conducted three really detailed hearings on this point remember initially the the event happened on may thirteenth so trial was continued for a month and on june twenty second we have the first hearing and at that hearing it's quite apparent that mr banjo is just not in a condition to do anything he's not practicing law he you know maybe has tried to put a in the water with some minor cases and has been unable to do that he's undergoing therapy he's really quite consumed with his daughter's death and he repeatedly talks about that and at the end of that hearing judge him and makes a finding and he says look i've the question is what happened between tune and august twenty third when the resumption date had been continued and i think even the cold record shows that the situation had really changed dramatically at that point mr banjo had basically returned to a very full calendar in fact he was complaining that he couldn't continue this case to september thirteenth because he had a trial the week before a criminal case it was going to be going he had a complex know that more that evidence that he's back in practice is needs to be balanced against his claim that it's the medical nature of this it's the doctor it's the medical profession what he believed was an injustice or worse that befell his daughter in the medical system so what i think daniel is saying is there's this bias  medical system and that is who your client is how do you address that well in two ways i think first of all on the claim of bias i think the judge was absolutely justified in rejecting this incredibly belated claim that arose basically a week before the trial is supposed to resume after a four month break is the first time we ever hear about this alleged bias we don't hear anything back in june when she repeatedly tells the court that she wants mr banta to represent her even though the supposed it bias would have arisen before that because she claimed that this conversation occurred while she was talking to him about possibly suing for malpractise and that was something that happened far as we can tell early on that she was having these conversations right after or at the time that the daughter was in the hospital moreover i i think that there was just you know no prior mention of hostility to doctors and the fact that mr van jones her said i can't represent her at all all he said is he said i could do the tax case i could do the witness tampering case i don't have anything he repeatedly said against this defendant i just have a problem with the fraud camps and so judge tillman honed in on that and he said well tell me again what exactly is your problem and i would submit that in the end it came down to the following it came down to here's the defense that my client wants to put on and i can't argue it because i don't believe her testimony she wants to argue that she never made any of these statements that was her testimony and i can't i can't believe that anymore so i cannot effectively represent her you're putting a gloss on exactly what he did say that you know but i think that's what judged him when understood because that's what say this is what i understand that what you're telling me is you can argue a defense that you don't believe and that what he said well i think what he said it here three hundred is if you if that's your problem that's not a basis to withdraw because you can argue based on the evidence that is available the same way that any other defense lawyer who doesn't believe their client you were using manager was doing was he doing street the case your honor nobody can read his mind i wasn't there i don't know i know that this was a difficult client i know that he think he said it in the way that i've just described it but i think what he consistently said is what i can't do here is i can't discredit the government witnesses and i'm not sure that i believe her and so caused the death of a folks and i guess that was very powerful testimony from the victim's family members know and like right he says that i just experienced the exact same thing and it's my kid and it happened three months ago i can't sit here and represent this person given the nature of these charges yes i'm trying to get back on track and in my other cases but this case i can't do and it seems to me we'd have to infer that what the judge the district judge here concluded and that he could properly so was that this was part of us what he called them you know or the client the lawyer get together and say hey you know what i'm going to go down my best hope is to mistrial you need to go up there and basically pretend that you can't continue to represent me right i don't agree with that your honor and i don't think that's the way the judge him one side either i think what's going on here is defense counsel came in and said i don't feel i can give a set of representation because my client has put on a defense that she never said any of these things and i cannot discredited say that so i don't remember that either well your honor if you look at what happened in the hearing the the twenty third banjo made a narrow claim this is a t e r five fourteen when the court sort of said well tell me what it is that you feel you can't do effectively he said i have to discredit the government's witnesses and i can't do that anymore and then at the hearing in september again the judge honed in on that he said now tell me what exactly is it that you feel you can't do and he said well you know in the hospital i was told two different things by two different doctors here and i'm talking at e r three hundred three hundred one he said the witnesses the government's witnesses say one thing the defendant says another and he says and i can't i can't believe her so i don't feel that i can give an effective closing argument and the judge responded and i submit correctly that is not a basis for withdrawal because if that's an ethical problem we have rules and case law that tell you what to do and what they say is and we've cited oh mean and campbell and laurie a number of california cases about the california rules of professional conduct that govern lawyers who are in the central district of california the answer is not to withdraw because it just puts the next lawyer in the same situation really feasible in the middle of trial the answer is the client is not entitled to present false testimony and they're not entitled to have a lawyer argue something that the lawyer doesn't believe is true and that's why we have cases that have affirmed that you're not deprived of your right to effective assistance of counsel if a lawyer doesn't make objections to questions of the prosecutor or doesn't argue in closing testimony that the lawyer doesn't believe is true that's what judge him once said to do what you need to do is you need to argue what you can if you don't think that you should argue on the first element because you don't believe that she didn't make the statements then you can argue that there's a reasonable doubt that she didn't have an inten defraud or that there's a reasonable doubt on any other element but we have we have guidelines and rules for what to do in that situation and that's what at your three hundred judge him and said you know if your problem is an ethical problem that you don't feel that you can give an effective defense because you don't believe your client the answer to that is don't argue that she was truthful when she said she didn't make those statements frankly any more we would have been in that situation she was on tape on national television saying we have stage four cancer said have a fifty percent cure rate and we have a lab and we buy herbs from all over the world and she was on tape telling the california medical board investigator we each here's a price list and these are the potencies and the drugs and even though the f d a doesn't allow me to say we do it here you know what we did so what is a defense lawyer supposed to do in that situation i don't think the answer here was to withdraw and i think that's why this court should defer to judge him one because he had an opportunity to watch the defendant and the lawyer he had an opportunity to look at banjo and because it terminations to whether he could effectively represent the squire and in january judge him and said no in april in august and in september after conducting very lengthy hearings and really probing what exactly was the problem judge him when concluded you could effectively represent this client baby you don't want to because this is a difficult case or difficult client and i may have i think we've got your argument in mind and certainly the briefing on that point for thank you for your argument thank you for put your time back on the clock old little daughter that died at the end of the physician the defense attorney put on the record that he didn't but he wouldn't believe this clive because she's a doctor and so i think the proper colloquy i think that maybe justice wofford was getting to was his offers of proof are adequate he came back in june and he said he was virtually on hand just i mean he said he couldn't adequately represent her him if he's if he's in bad shape it doesn't don't know how much on the fact that although mr banjo was in therapy that he didn't submit any kind of a declaration from a professional who could validate the the claims he was making about his inability to try this particular case what  y i mean if that in fact was really what was motivating his actions why wouldn't he have at least gone to his therapist and say hey can you submit something the court is questioning whether i'm telling the truth or that's a good point and i  agree with that i think is that i think as an officer of the court as representations are enough and i mean i think the upshot of saying he was not to be believed was a did the district's discretion here was correct and you would almost have to make a finding that he was lying to the court just to throw the case for just some nefarious reason or that he and misstating were colluding to throw this case there's just no evidence of that in the rafters and so he wasn't even a lot he did need you didn't get a closing argument in this complex william motional case and the reason he didn't is for a lot of reasons not least because he didn't believe in thank both counsel for the argument it's a very difficult case we acknowledge that case of united states versus daniel is submitted and we're adjourned for the morning