ok mr swift case there was a train wreck that everybody saw coming the trial court saw it coming the prosecutor saw it coming the only person who didn't see it coming was the defense attorney we are here on his ineffective assistance  obtain the proper witnesses or to file the proper documents letters raga torrie get proper permissions and potentially hold depositions on those witnesses but there's really little reason to believe that it would have been granted actually there's plenty of reason to believe it would have been granted your honor companion his son had fees caught and i do know that because i did the depositions of several of those witnesses in pakistan with the united states government along with other witnesses three later in his son's immigration case there was no difficulty in obtaining the witness as there was no difficulty in obtaining permission and i thought that would not something that happens three years later i thought that when the defen lawyer goes over there to pakistan he's told officials that there are unlikely to give permission i am not sure that that was anywhere in the record i am not aware of that i am told that he did what he says to the court is that he's not depositions without any problem whatsoever it is highly unlikely in fact your honor that a court would cognisant the idea that we would do something against pakistan against their wishes that's why we go through letters raga torrie in fact on the record what the judge says is not granting the continuance you told me this was going to be open in the torrijos but don't just in everyday life don't all of us make strategic judgement sometimes the old saying goes it's better to ask forgiveness than permission isn't that what this is it's better to ask forgiveness than permission we called it in the direct appeal case a strategic decision why wasn't a strategic decision i've made the strategic decision many times to ask for forgiveness in retrospect rather than permission on the front end well part is a it's not a strategic decision which the supreme court doesn't think so if we were to look at hinton versus alabama fifty seven dollars us to sixty three dollars which involved the question of whether you followed the court's orders to obtain sufficient funds for an expert witness to teach a cli decided not to and then didn't have the funding what else is it something where the district court is the one who shuts it down this is where the pakistani government does right that's correct but that's because i mean not getting coming the court's permission doesn't have anything to do with it i'm talking about permission of the pakistanis ask forgiveness of the pakistanis rather than permission  strategically there is a way to obtain these witnesses your honor i've done it twice i've in criminal cases i obtained witnesses in afghanistan i have obtained witnesses in bosnia herzegovina i have followed the letters raga torrie because that's how the rules say to do it i have had the cooperation of the united states government on every single time and i have been able to obtain the witnesses in the middle of a war following the rules that's not strategic that simply error what about the fact that the defense attorney in this case was consulting with lawyers in pakistan who were saying if you ask permission it will be denied so he doesn't ask permission and they proceed with the video and the video feed is interrupted how is this not a catch twenty two situation that the attorney was put into what i would say on the part is that you follow the process honor whatever consult and that we come to the process that that's why we have the state department to help us get witnesses and that we do get witnesses this way we have a procedure doing a terrorism trial and i've done multiple of them is a difficult thing one of the most difficult things about it is when it involves an overseas act it has overseas witnesses and in each case you have to follow the process to get them in every case i have followed the process and some of them and some overseas cases involve germany and that's a whole different story in this we have pakistan and why is it not relevant the year in which this is happening what the country conditions are at th moment rather than if you give me an example from three years later why is that not potentially a very different situation but i would say in this one your honour's is that a few years later we have the still the pakistani  taliban we still have all of the concerns of security shortly before we did our witnesses the pakistani taliban had conducted another attack we had to move it around for security but we were able to do it in every case by following the process and again inside afghanistan literally as patents were being fought in we brought witnesses down from guys in the afghanistan to  testify at videotaped depositions it's also vantages of the deposition your honor we have multiple ways to get it st you request the permission if you want to do a videotape deposition if it's impossible to secure the witnesses then you can apply to the court for a written deposition of those witnesses where they may not be part of the procedures think through this the problem is the attorney simply didn't do it he went against everyon the trial court told him to do it the prosecution told him to do it and now what this court would do is say you know what you can ignore the orders of a court this same thing the same logic would be used for subpoenaing witnesses to subpoena a witness is always a difficult decision for a defense attorney will they be mad well they get upset about it being ignored the instructions of the court but the court's not the impediment here the court was was allowing this testimony the court was i mean matter whether you know where the you say what the court was requiring the court in the end did not require the question is would he have gotten their permission from pakistan or not isn't it i think did he have time to do the letters or are going to all those kinds of questions to me seem like the real question and what does the record say about his belief that he would it would have been difficult if not impossible to get their permission and it seems to me that evidence that the record at least about that is uncon overted his educations to the court part that an affidavit that he didn't need them is what i believe it said there's a couple of things though isn't he he was told look if you seek the permission you're not going to get it you're likely not going to get it but you don't need to you don't need to ask for it because as long as the united states is not is not going to ask him for it and they're not here we don't care if it's a voluntary deposition fine we don't care so he makes the best of a bad situation and even though the court has told him to get permission the court nevertheless allows him to go forward and take the testimony the way he's he's he's picked to do then it gets shut down that's what happened trite that is what happened so the part now you're on our court let's go ahead the court had no choice on the part here in part they're trying to get i mean not following what the court does it isn't the point and that's what i'm saying i'm saying you're our part is i think it is respectfully a significant point because he doesn't follow the rules on the process and this and the courts have held repeatedly when you don't follow the rules on brawling a subpoena or doing something to obtain the wit the testimony of the witness that that's not strategic we're going against that line of precedents the courts have said no i would have thought there might be some overlap between following the rules of the court the orders of the court and the interests of the client but that those two things are not perfectly coa coextensive or i guess here what you'd be saying is mutually exclusive but that the st and foremost the supreme court has said in case after case after case after case is whether or not the defense counsel has reasonably represented the interests of his client and i call in the rules of the court may bear on that but they do not exhaust that in your honor the part i specially submit that this is he did not reasonably represent the interest so that's a different argument i did not in the process in this so that's fair but i don't think that you can say your honor it's a complete answer to that question that he didn't follow the rules of the court that's all i'm trying to say with respect judge prior's question is it's not a complete answer to say he didn't follow the rules of the court that may bear on the reasonableness of his representation but it does not define the reason less of his representation so tell me why and apart from not following the rules of the court this was an unreasonable decision and they are going to these efforts that we owe council's decision making in the unreasonable decision making you take all steps to obtain the witnesses follow the following the rules of the court would have been reasonable because a let's say he doesn't allow the witnesses then i can go for the alternate the written depositions if i can't get them in person i also will know well in advance of trial i can look for hearsay exceptions but in because they're unavailable but in fairness it's not enough to say there were other reasonable paths you need to explain to me why this one was unreasonable this plan is unreasonable because in obtaining a foreign witness we have set out the methodology for doing it and i stand before this court there is evidence in this record that if he had done it that way he would not have gotten the testimony isn't there i mean it's looks to me like it's uncontroverted evidence i would say you do whatever you have done personally and trying terrorism cases and whatever you've accomplished three years after the fact in pakistan to me is it totally beside the point i've got to look at this record and whether the burden has been satisfied that his judgment that following the what the court's instructions were would have worked and his his uncontroverted record appears to be it wouldn't have been so he made the best of a bad situation and said i'm also told if we just do this voluntarily they're not going to interfere lest let's try it that way isn't that a strategic a reasonable strategic choice that's what this comes down to it seems to me i don't think it's a reasonable strategic choice to disregard the procedures here on earth i don't believe that it is reasonable under the parts  this and they don't believe that it's reasonable not to know what witnesses that you will have available before trial and be prepared for trial starting to work i mean you got through witness right he did get through one witness  under those circumstances your honor what i would say in this process is that we engage in a different speculation that he wouldn't have gotten it i respectfully disagree that what evidence is there in the record th yes that shows he would have gotten within this trial there is none i would turn to that if we come to this i believe that this is a tactical decision not a strategic decision  i believe that it fall it does not fall within the gamut of what the court supreme court has left which reasons i think you hit more on the part whether the witness would be available or not in process that that's really the thrust of the court's or it's questions but i would say that it's like subpoenas we don't speculate whether they would be there or not or whether this would have gone through or not that that's not appropriate otherwise the failure to subpoena we could always disarm and that they might khan's criminal case as a court noted the timing and the facts of what was occurring at the time is critical this is a strickland analysis ac intensive it terrorism charges against mr khan and his co defendants were filed ten days after united states navy seals entered pakistan without the knowledge or consent of the government of pakistan and killed al qaeda founder and mass murderer osama bin laden in his pakistani hideout it was just about a year afterwards that the defense team and i think it's important to remember it wasn't just mr kerr more heed the counsel who is the only attorney named in the ineffective assistance of counsel claim this was part of a joint absolutely there should be no rule fifteen subpoena excuse me depositions of fugitive co defendants who refused to come to the united states and who wanted to testify in pakistan an coconspirator and a fact witness it was five months again a bitter fighting and i could not disagree more strongly with mike with mr swift that this was a train wreck when you look at the concerted effort of the defense team that they convinced judge scola to allow depositions in pakistan of three  a remarkable testament to the skill and the tenacity of what occurred here and you have to look at that in the context as far as the record also and i'm going to confine myself to the record in this  case it is clear the judge goa who is a person who entered the order did not consider this was a willful violation that caused as sanction to be appropriate and i think timing again is very important you order the final order granting the rule fifteen depositions in this case was entered on november the nd two thousand and twelve that's about two months before the trial was scheduled to begin and it's very important that in footnote five of that order which i believe is docket entry five hundred and sixty two the court says i don't think it's arguably unnecessary that you have the express permission of the government of pakistan to conduct this testimony but i'm requiring it because from the standpoint of judicial resources and expens the taxpayers judge bolitho did not want them to follow through with the last minute if you look in particular at the transcript of the status hearing that was held on december th two thousand and twelve shortly before trial began palm who is representing is our con and the joint defense theory there talk about the fact of all the efforts that have been taken by the defense team and a meticulous curran why he and the attorney in pakistan hired in order to assist in trying to do everything the defense could to get that testimony in front of the jury and his affidavit i believe is it five hundred and ninety eight dash one as the court noted they went and they talked to the solicitor deputy solicitor of the i believe the ministry of of of of law and also the they spoke with the legal counsel at the ministry of foreign affairs and they were told this is never happened nobody really knew and that seems to keep getting lost as mr swift is talking about the as the th circuit put it in direct appeal the international quagmire that these defense attorneys were facing never had the government of pakistan a testimony in a united states criminal case at one point actually tried to get the district court to order the attorneys to have the testimony in a rd party country like the united arab emirates but of course the defense they were stuck attorney while he knew that there was no way this could occur anywhere but pakistan because the moment the fugitive co defendants left pakistan they were going to be arrested indeed at that hearing a documentary five  i agent spoke about the fact that this depositions couldn't occur at the embassy in pakistan for security reasons and if they showed up we would arrest so let me just push back just a little bit i was giving mr swift the business about his reliance on violation of orders of the court and sort of total evidence of unreasonable conduct how far though do you want to take us down the road of it being a valid strategic judgment to ignore what the district court has said st of all your honor i wouldn't say that it was a flat out ignoring if you look at the status conference on december the th when judge scola asked mr  wahid so what's the story do you think we're going to get any firm ruling from the government of pakistan well he said well you know in the last week i think we've made progress i'm hopeful that we'll get something i guess i'm reading from five  going to do with a minute do a rd option sort of thanks for the advice but i'm going to a rd option and you know i mean i get it i think that in the real world we do all make judgments that it's easier to ask forgiveness than permission but that is in fairness sort of a rogue strategy risk we are i'd like to say a couple of things about that st of all obviously the united states at all times has argued that the preferred thing here would have been indeed letters rotatory but judge never said they were required and we would never recommend that a defense attorney or any attorney would ignore court order far from it but i think it's impossible to read the record in now in fairness judge paula didn't have the opportunity consider the argument made for the st time on direct appeal that this would be a violation of a court order and therefore as an officer of the court that the two thousand two hundred and fifty five dollars should be granted as a government argued and were brief that in our view is not a proper argument in front of this court but but i don't think when you talk about noncompliance with the court order st of all if there were per se rule that every time a defense attorney failed to fully comply with a court order that was ineffective assistance of counsel in the majority of cases we would write the st prong stricklin right out and we'd always be going to prejudice and i don't know how you read stric and though the wall of cases post strickland talking about you have to look at the facts and you know i looked and looked and this is just unique and so many levels not only because it was on precedent to try to bring that testimony from pakistan and this is completely different than a civil immigration case years later where from the pakistani government standpoint what you would have if the united states one was it from khan was back in the in in pakistan instead of being a citizen of the united states and once again i would also note that that's another argument that the district court did not have the opportunity to consider because never you have the exchange going back and forth with supplemented the affidavit that was filed by con you also have some conversations with wahid talking with judge school in the february about all the efforts that he made and what he was told part of the things i think your honor is talking about in that that had never been approved the government at different times spoke about the state department also opining although not officially what would happen a lot of what was told to while he was basically they weren't sure what would happen but that if you had to have an official statement from the government of pakistan that then it was going to make them a party is how they phrased it and in that situation i think another important thing to really note that may have gotten lost is it wasn't going to be granted i don't recall either of the ministry of foreign affairs or the ministry of law flat out saying it wouldn't be granted but it what he said well he said i think actually another part of the strategy was that the way that the obligation was the united states that the defense attorneys had no requirement that the government of pakistan didn't care that you could do voluntary depositions if they were he'd say that he was told if it required the official permission of the government he was unlikely to apologize i'm here to help me today you know i apologize i don't remember that precise statement i think what came through loud and clear was in their view that if if they brought the government of pakistan into it and made them a formal party that there was certainly no assurance at all that they would get the permission because again it had never been done and the other thing i think that's very important is on december th the united states state department sent a diplomatic note and also a member of the state department called the minister of foreign affairs and told them this is happening you're going to have the depositions it was never any response from the government of pakistan or no official response although again as judge scola noted in his order denying the motion for a new trial there was no evidence conclusive as to what happened and why the feed was cut but everything seemed to indicate that some part of the government of pakistan shut it down because the government of pakistan never responded to the diplomatic note sent on december th there is nothing in this record nothing in this record to indicate that they ever would have approved the testimony from pakistan of the co defendants the unindicted coconspirator and the fact witness let me let me ask one question about letters or auditory in general and forgive me it's been a while since i've dealt with them but in looking at letters or auditory in general and whatever foreign country it may be are they always required or are there circumstances where if the foreign country says oh if it's a voluntary deposition that's ok go ahead or is it always appropriate to get the letters or auditory i think to some questions your honor st of all the government's position would be when you're dealing with another country it's always appropriate to get the letters rotatory but as a practical matter they can take a year or more and here i think when you're talking about the reasonableness of the decisions made by while he'd and the defense team it's incredibly important to remember the judge school and himself in his november nd order said didn't require letters rotatory and didn't even find that the fischel permission was required and i see that my time is up been in response on the part is really what you have inside this is the failure to follow the requests for letter ah good tory especially if it's never done as the reasonable thing to do in representing your client trying to go the back door is not the reasonable way if it's never been done before doing it formally is correct the government is correct that letters are all good tory take a long time but that's why you have continuances the court's not going to grab a continuance when you haven't put in the request at the beginning the government can't participate without giving notice to the state department the government of pakistan is going to find out no matter what in this process and that's exactly what happened to it they just didn't feel in doubt through formal channels requesting the depositions through letter rocketry which were made on the defendants hat behalf by the united states which changes parts simply put your honour's there's no way to go that we would not have the witnesses simply put if you had followed it there would be a clean record on the part on it simply put they were material witnesses they were important and all of these unique circumstances don't argue for winging it it's a unique set of circumstances all agree completely on that but it doesn't argue for winning it in if anything it argues for doing it formally and doing it correctly but if there is no evidence that the pakistani government would have granted permission how do you  that how do you win this appeal what's the part how do i winners know if there's no evidence that the pakistani government would have agreed to the depositions how do you win this appeal i win this appeal because it would be speculative to say that they would not have in this process in the decision making on obtaining a witness your honor isn't the burden on you i think i've showed the two thoughts that are important witnesses all in their affidavits would have given material testimony and would have would have been willing to testify that's the most part i think it is an and most important piece what the pakistani government would have said i agree that it is important your honor but i would say in the end we would come to the same idea that if i did a subpoena do i have to show that i failed to issue a subpoena to act show this isn't a fatal that we don't know that the pakistani government would have granted the permission to take the depositions i do not believe it is your o i do not because i believe then the court and gauges and speculation the other way and these stories of speculations on strickland are would then be if well burdens on you to prove the pakistani government would have granted it isn't fatal if you don't have that evidence on the record i don't believe that it's the burden is on me to prove that prejudice i disagree with that you do you disagree with the notion that under strickland you have to prove prejudice i have to prove prejudice his failure to follow all the the steps ysaye that the failure to follow the steps means there was division performance ok now where is the prejudice if the if he had done what you say he should have there's no evidence that it would have been granted anyway you failed to prove prejudice in part on that i cases similar cases where they failed to subpoena or failed to obtain the witness part they did not