communicating with his counselor with his with his attorney this is not the person this is not a person who would not have known what was what was going on instead of doing the prosecutor struck at the heart of the defense which was of course that mr costin i did sitting there the whole time during the trial and you know anyone that's ever stepped in a trial that the jurors look at people all the time coming in and out of the trial and they're you know they're you know so it's not that they wouldn't have seen all of that anyway or that that the is something that you know that i mean they could have come to that conclusion without saying anything and we would have never known about that we were right and there is and why is the evidence overwhelming believe that lawyers jobs are to obfuscate the truth and to do all sorts of you know admirable things and so in so doing essentially we don't know why because we don't know why the jury convicted him we're not there in the jury room and it's certainly possible that this particular act misconduct was the thing that shifted the turning the tide where convictions that in addition the comment it's time circuits would consider that comment as a comment on the right to operating witness testimony and those those witnesses were you know they all had a motive it the usual motives to cooperate so this was not it was again it was it's not an open and shut ca this is not a situation i want to make clear this was not a situation where we had an attorney who came in and created problems with consummation it didn't follow the local rules had a history of being obstreperous he came in and he filed a motion he's talking about not a member of the federal bar per se but for the state bar whatever where it's pro hart the chiba just no not a lawyer at all although that may be debatable but then what he then goes on to say  is none of these limitations on the right to choose one's counsel is relevant here this is not a case about a court's power to enforce rules or hear two practices that determine which attorneys may appear inherent power to discipline attorneys to for example not allow attorneys to become full members of the bar if they don't need certain requirements which is not challenged here to you know in order in other words to take certain action harmless error you don't have to find that mr acosta received ineffective assistance at sentencing but the situation here is mr ellis is a nationally recognized expert at sentencing he's very very good i don't think i have to argue that because the guidelines are no longer mandatory and so the more persuasive a sentencing of a kid it is a greater likelihood that the defendant is going to get a better result now here ultimately judge  the difficulty that i mean that is the reason i would again argue that it is structural aerotow matter as long as it occurs at a critical stage of the proceeding and there's no doubt that sentencing is a critical stage of the criminal proceeding mind at least a hand as on behalf of the united states they please the court the record and the evidence in this case shows that the defendant received a fair trial and there was overwhelming evidence to support his convictions the jury in this case heard a tape recording when the defendant essentially ignored it the context in the trial he admitted to having paid a young person a thousand dollars to sign no chastising defense counsel because there was no objection that was overruled because there was no third instruction given it is passed along to the other evidence the other context issue is that this comment was made in the rusted out closing rebuttal was that the papers the documents of which the jury saw of one hundred of them coupled with the testimony in the defense's own witness magical showed that the defendant knew and he actually was hands on and terms of how the proceeds were split up and the were counted for if you focus on the facts that closing rebuttal you would see that the force of it was essentially taking the jury through a mathematical calculation of how the document showed that the defendant would have not known that one the documents were false and the down payment was paid his magical on her class initially admitted that document was shown to the defendants and that he had seen it later tell she if you do we can't show that it didn't happen because it shows the down payment on it sixty what he had to have accounted for the very money that madrigal says he would not have known about how would he have had accounted for it he would have had to account for the down payment that was paid by one of the partners he would have to account for the phos documents that were purchase would have had to account for the money that was paid to of the straw buyers only by taking into account those documents could the proceeds track which was in defendant's own handwriting what has been written if not you want to come was himself looking at the documents figuring out what partners need what expenses which included down payments were which were illegal by the partners not the bars which included false documents and which includes from buyers in addition to that fourteenth one seventeen and again excerpts to record at once sixty and one sixty four and that same tape with jury heard the defendants day quote i paid you to do that because hell now they're going to bust me for that and that's out for zero five one sixty eight that's his record at one fourteen the jury in this case the jury at issue heard the defendant say it will probably take a year or two years so that the only way they can nail me is if you s and say hate my cousin said that when he was twenty one years old the defendant asked him to sign to sister the defendant and purchasing apartments and exchange that he would receive one thousand dollars the jury heard not only the state of the defendant's own testimony but really because justice scalia's opinion is pretty clear about why it's structural there at least in the trial context so that the government think you can make a fair distinction in the sentencing context or post trial post verdict post filing motions for the trial but in distance that the government would point out the application for a continuance where and in footnote one that they represent does the government urge th counsel and not only you that if you look specifically of the underlying facts of the eighth circuit consolidate opinion not only was he denied the right to counsel but he was denied the right to confer with that counsel throughout the trial process and so th stage of the proceedings what i think that in the end would you say that would be fine i think that that the standard is different and that's the question the court has asked is if that denial of counsel occurred you know and we haven't discussed the first and the reason why there may be a distinction is that as the watchers court pointed out is that the issue of exclusion here did not affect the framer function which the trial for speeding and when you look at the supreme court's decision  about the fundamental error being in the context of counsel being able to x twelve possibly help with the issuance of dollar and cents the government believes that if the court finds that it was errant exclusion which we have not discussed whether or not there was sufficient obviously wants so you know arguably the feds could say ok you know i don't want to say where it's insane because i've already tried this way on for size and i you know it didn't come out the way that i wanted so i think you know does point out kind of his purview where there is considerations that equipment's take into account just by the nature of litigation that echoes the same language in walter's laughter specifically saying that there's a concern only when the mechanistic application of the will and you know whether or not there are sufficient findings here is something of this comes determine and that and the government feels that there was sufficient but to that extent walters is still in co decision which leaves open the issue that under a sentencing analysis when that explosion occurs at the sentencing stage that harmless error may be of a couple government's position is that regardless of whatever standards retain the attorney of their choosing so no it won't happen and it has to retain counsel yes it might and some defendants will choose to change attorneys and some will not it may and it may ultimately i had to be crass but you know it may turn out as a question of whether the defendant has the resources but that's really not the point the point is that the constitution of course i just want a particular right to determine its who are able to retain their attorney of their own choosing it is that right is not afforded to defendants who are represented by what i counsel now we can quarrel about whether that's fair or whether it's just but that is what the constitution says as as accepted by the supreme court  has no history of discipline he complied with the rules the judge gave no credence to the defendant six no right did apparently consider right and i was saying even if harmless error analysis were to are not entitled to intentionally commit error because they know what might be harmless later this is not something that judges are allowed to do and clearly in the application