outlining significant failures on the part of his trial counsel at the court decided to replace him and through no fault of the appellant the successor counsel ran into a problem of his own having nothing to do with the appellant there was a sealed proceeding present counsel was not present for and who were decided that that the successor council after two years should should be relieved again that had nothing to do with mr kirschner it was an issue that frankly had to do with another case another disk i took over the case we filed there's a lengthy record of the supplemental motion the following year in issuing that opinion was because he was waiting for this court to make a decision in the related case so the point i'm trying to make is although it appears to be there's there was some delay on occasion by by the defendant appellant that's not the case here he surrendered already he's been in jail for about a month he was sentenced to thirty months good time eighty five percent so that figures out to about twenty four months here's what my concern is your lower court simply did not properly review the allegations and i say that respectfully but ordinarily as this court notice it is required the trial counsel the lawyer that supposedly is involved in the in the in the malfeasance submit sansa mason explaining the circumstances that was never done here now the merits panel in this case if the merits panel is concerned about that and decides and then an abundance of caution it's appropriate to to remain on that issue by the time that happens mr kirschner will have served remainder of his sentence and any relief that could be brought will be neutralized he's eighty years old of the fact that the selling can conviction is not is not dispositive if you will but mr curzon will end up serving the entire sentence before this court has an opportunity opportunity to fully review whether or not there was ineffectiveness of counsel on this case so for that reason alone the court should grant bail pending appeal while the merits down has an opportunity to to consider whether or not the court should have required a trial counsel to explain is actions frankly once we took over we interviewed numerous witnesses we outlined their testimony in detail in our memorandum and there there are several of them explain here's what i will the said no one ever contacted me no one ever reached out to me there's just no excuse for this the court should have held a full hearing required while counsel to has to submit an explanation for why he failed to do what he should have done during the trial of the sketch i'll reserve the rest of my affirm the district court's ruling denying bond on appeal while the government concedes that the defendant is not a flight risk the defendant has not shown a substantial question cursors argument is that his trial counsel was in effect that however to prevail on that he would have to show prejudice by establishing that there's a reasonable probability that but for counsel's unprofessional errors the result would have been different and the government submit that he cannot as judge patel yano explained in rejecting kirshner's motion for a new trial kirschner faced a mountain of incriminating evidence and failed to carry his burden of showing a reasonable probability of a different outcome among others or among other evidence the government proved that person was a key conspirator in a multimillion dollar pump and dump scheme specifically he handled the role of being what was called a corporate guy in the scheme issuing shares for the fraudulent companies keeping the company's tradeable and drafting false press releases that helped and in fact the discussion of these false press releases was captured on recorded calls that were played for the jury where the defendant in his own voice spoke about the fraud s in addition kirshner handled the bank accounts in it and it pointed the nominee corporate officers who were used as part of the scheme and the cooperating witnesses also testified regarding persons role related to several of the areas that person are now claims his trial counsel should have in fact put forward those witnesses actually testified one of them was david long who kirschner says th trial counsel was ineffective for not using to to assist him however david long was in i've been called by the government and testified in short that he had been he was a good friend of mr kirschner and they've been a figurehead for the two companies that kirshner set up and controlled housman holdings in one chron long testified in short that kirshner sent him press releases for the companies which long would send along to a publicist long admitted he had no knowledge of the veracity of those press releases one of the press releases the government put in you know that had been sent out and were dated one was a figurehead president for that company claimed a one hundred million dollar contract for one of the companies and kirshner had sent in that press release and the government show that there was no evidence of any such contract or any such revenue that was one classic example of the fraud and something that despite christmas protestations that evidence but the evidence from david long does not in fact help and it hurt him another witness who mr person claims is trial counsel should have called was an engineer named robert baker who was deposed by his trial counsel and the government before the trial and the government played his deposition testimony during its case because again that evidence  although mr kirschner seems to think it would help and did not help him in fact mr baker talked about an invention related to the company night crime which he said was so dangerous that they couldn't bring it to market because the patents that he was testing would blow up and might kill people so in some the government's evidence was overwhelming and the additional testing monye that mr  would seek to admit in fact was admitted by his trial counsel at least in part and did not help him in your honour's because the defendant has not raise the court's denial of bail i mean you know but this is a motion for bail pending appeal so we're even i'm granting not a far right i apologize your honor i would ask that you deny his motion for bail what kind of briefing schedule this is on your honor i believe defense counsel has not yet perfected his appeal he has been filed to feel ok thank you ron all right  you have a minute to drench you can to answer your question we just received all of the transcripts last week and we thought it prudent to wait until we have this argument to issue a request for a scheduling water in the event that this court was inclined to grant the defendant's application for bell any appeal then it would seem to me the court would we would also issue an expedited scheduling order who are prepared for that  not there is overwhelming evidence of guilt question here is whether or not if there is a concern on the merits that well if that merits panel concludes the judgment tallied i should have heard should have heard from tribal council is that this will be and even if the outcome might be favorable to your client it would not sit here and really thought appeal because of their contention that the evidence was so overwhelming don't you at least have to address that in terms of why we would well i don't think this court should be in a position to assess that that's the that's the rabbit hole the government wants to go down to and i don't mean that disrespectfully here this court is not in a position to assess whether the government is correct that there was overwhelming evidence of guilt and even if that were to be the case even if the merits and all decided we're going to send it back for that assessment and then the court either granted or denied the  defendant's request for an effective this is of counsel then we'd be back before this court and again the sentence would be long over were this to have been a lengthier sentence he was sentenced to ten years or something like that and we might have a different