one time well i do have a conflict but i want to see what the government evidence is of my problem or what they think the problem is after hearing the evidence then they decide well i don't have a conflict anymore you have the government saying that there is a conflict in the government waive the conflict or decide that the conflict is no longer there or their position is that the conflict is no longer there all of that appellant is listening to and understand as he's going through one of the things i didn't read that i actually it's just dawned on me as as i was reading this last night there was all part of the government scheme to deny me my lawyer the interesting thing is that's exactly what case well i mean what's the principle that just because we don't feel good about this one now well i think you could almost draw fire line that if the defense attorney is the subject of the investigation or subject or a target of the investigation that this death that his client is ultimately going to be tried on he probably shouldn't try the case i think that's probably a fair locker that no your honor but there is there i can say that because the maybe that is a start i think there is maybe a conflict is no doubt that on the face there was a conflict i don't have any problem in my mind saying that there was a natural conflict the question is having a done to fight it does that mean he's automatically off the case and the defendant but would you agree that had the district court thrown the lawyer off the case you could argue just as adroitly now that the district court erred in doing so the action that i spent the night realizing that i was going to have to deal with that issue voluntarily waived the conflict of which he now complains and want to focus in on the issue of whether this is an wafl conflict i'll leave aside whether assuming it was waived will it was properly waived i think the district court with went through incredibly detailed and multi day waiver to make sure it was properly waived on the issue of whether the conflict is an un wave of a conflict this court hasn't set forth the parameters of what types of conflicts will be on wave a bill that has relying on a second circuit case noted that it would have to be so egregious that no rational defended knowing of the conflict would proceed with that attorney and in this case looking at the individual areas where the conflict is claimed this is not as severe as the types of conflicts which courts have found to be waived properly waive a bill the first one on the issue of the drug purchases by the attorney from a codefendant this is not a case where the attorney was alleged to be a member of the narcotics conspiracy or where that particular drug purchase was going to come up at trial in fact the government made clear to the district court that it would not be offering evidence of any such drug purchases and no such drug purchases were offered evidence and the attorney's name never came up at all during the trial as being any way involved other than as an attorney secondly it's important to focus on the procedural nature of where these defendants were the the leading to spend it was charged as in a in a narcotics conspiracy a massive widescale hundred kilogram quantity thousand meth and fifty thousand pounds of methamphetamine quantity narcotics conspiracy simple by personal use quantity sales was not likely to come up during trial and didn't come up during trial defended stephen ward was charged with money laundering two separate things there's no reason to think that the attorney even assuming that he didn't fact purchase drugs from john ward would have any problem representing stephen ward in connection with the money laundering aspect of the case and in fact the tact he took and attacked taken by the other co defendants even worse wife francis ward who was in essentially the identical position as stephen were both those attorneys for those two defendants took the same tack and that is they did not challenge the fact that their son john ward was a drug dealer they could essentially conceded that fact their focus was on whether they knowingly laundered money knowing that it was the proceeds  drug dealing and to the extent steven warranty extent stephen words attorney ever purchased drugs from john work that would have no impact on his ability to put forth that defense and his decision to make that defense is justified by looking no further than the fact that an attorney  essentially the same position with no conflict made this thing tactical choice with respect to the attorneys prior representation of john were there are actually two different areas where he represented him one was in a civil case that had nothing to do with this criminal case and i think that properly could in this court in the supreme court has held such prior representation can be properly waived the second one was in connection with a with a narcotics prosecution of john ward in the state of idaho about four or five years earlier and he's time on that case was very brief that particular conduct was not charged in this case although it was offered as forward be evidence in this case and again this court case law in the supreme court's case law is so obsessed and representation is something that can be wave a bill this is not a concurrent representation situation and even concurrent representation in the appropriate place can you wait so long the issue of whether this is  where the defendant confirmed that he had an attorney he did identify the attorney and by the name of harlan birch and confirmed that he had spoken both with with mr right outside the presence of the courtroom he had read the government's filing about the prosecutor about the conflict three or four times and had consulted with me and if any tourney was waived well it was waived and even if it was found to be not waive all in order to reverse the conviction the court would have to find some adverse effect at the conflict had on the attorney there's no evidence of any adverse effect and again i point the court no further than the co defendants attorney who took essentially exactly the same tack at every step of the way as mr wright did and not challenging the fact that john was a drug dealer to focusing instead on whether his parents knew he was a drug dealer and knowingly laundered the proceeds of narcotics trafficking with respect to the other issue raised in raising the grief regarding the the jury instructions i think the government's handled that i think it may have been an error you have an attorney who's accused of being party to the very criminal enterprise i'm just trying to think how it how that gets flushed out so that the and therefore has his own interest to protect how was the defendant and his independent counsel supposed to be able to find out  whether that's a credible denial on the part of the defense counsel so you can make the informed decision if it's guys that are good con man for example is the one in my hypothetical he basically convinces the defendant that there's nothing to this and then he proceeds through the trial it puts in the normal burden then on the defendant later come along and say well as your just of just argued well the reason he didn't thoroughly cross examine here is you know the strategic that's sort of a marker position and somewhat leads to the notion that maybe there should be a bright line tennis well and that's a very very good question and what exactly you can't trust the attorney in a situation like that in every situation to truthfully put forward all the facts that's where what is required and what the proper course is in what the district court judge did was take referred to an independent attorney and independent attorney presumably could have and did say hey outside of the presence of tom right you don't know what this attorney did the government claims it has information about drug purchases it could be more if you understand that there could be more and he might try to protect himself rather than protect you knowing that possibility you still want to go forward with him that's what we counted that's why the independent reference to an independent attorney was so important and judge taylor below made that expressed question to the defendant there's been this allegation i don't know if it's true nobody knows if it's true nobody knows if there's more to it than that you have to recognize mr ward that your attorney could go out and seek to protect his interests above yours we don't know whether that's going to happen but knowing that that possibility is there do you still wish to proceed with that  that's that's all of judge can do now this is a very different case then then let's say an attorney is has indicted in a complaint as a kingpin of a drug conspiracy and he and there's a lower level player who could conceivably cooperat against him and he's going to go to trial in represent himself and that lower level player where he is jeopardy is at stake in that trial and by representing this person he may be preventing that person from doing what's in his best interests and that is to cooperate presumption should be that the defendant gets to keep his counsel and we don't think weed is very instructive there you have the attorney representing trying to represent three people each cooperating against each other in different trials in two days before trial and when the third defendant tried to retain that attorney that the supreme court of the district court said no and supreme court said yes that was an appropriate exercise of the district courts with wide discretion but it also said if another district co had made the opposite come to the opposite conclusion that would not necessarily be wrong either  court appoints we have to live the attorney who is the target of the conflict not part of it whatever he may be you can't take his word for it the question is whether there's enough protection in what went on here the independent lawyer and the colloquy with the judge is enough to put it to the defendant that he is taking a risk and that he can't positions not because the other attorney or the trying for the mom later on also took the same tactical position of not cross examine those witnesses you can't assume that that was a that that means it's a good idea the interesting thing is the witness that wasn't when she comes to the witness stand or no questions asked her out the fact that someone else that the other trying to didn't ask questions of her that's interesting but i don't think it's compelling nor is it disclosing anything else just peter did what i think