tallman to waive his direct appeal despite the fact that there were three separate trial errors where a judge had explicitly said that an error was present in one of those a panel of this core expressly held that it was in error and reverse the lower court's order the other issue here is that trial counsel failed to explain the concept of vicarious liability to mr tillman and so he thought that because he personally had been acquitted of murder in state court it could be convicted under rico in federal court for a similar charge so i'm going to talk a bit about each of these errors but my overall point is that these are all very substantial claims of ineffective assistance and the court should take it so the st issue is that for most of the pretrial period tillman was represented by a lawyer named john greil who had a good relationship but the district court forcibly severed that relationship about six weeks before the trial is scheduled to happen now is a right  of the right to six men that counsel so in this situation the judge was clearly motivated by personal feelings of anger wasn't following the law or make your rationalization so here are some quotes from the judge you ranted about  disappointing greil and it it adopts the same reasoning it says that the original johns was i'm paraphrasing here but that he was doing a good job that he was concerned with the dignity of the court and the fairness of the process and i think from the record it's very clear that none of that was actually true and i think this court explicitly held in a procedural not entitled to counsel of his tours so the only question is whether or not whether or not the st order should have been removed  you know ultimately isn't the issue it's whether or not the lawyers he was given were in effect yeah your honor so i think that's basically right if it's in counsel there's a presumptive right to the counsel of your choice and if it's appointed counsel there's a right to effective counsel and so my argument here would be these other claims show that counsel is new counsel is not actually effective so when greil was denied he got stuck with these thirty so i think there are two ineffective assistance claims here and basically i think one of them is one theory that you're saying and the other one is the other theory i would also point to the next issue which is the speedy trial issue i'm not sure i follow that so the government says they wouldn't have given an appellate waiver right i don't know that that's true i believe there was an earlier version of the deal that might have had an appellate or the i'm sorry i guess i'm confused i don't understand your question you're a phrase at least did the government say did the government in the eighteen year deal have an appellate waiver or not what it is just will not do and has discretion yes your honor so my understanding and again i would have to go back and confirm this in the record is that the eighteen year plea deal before trial did not having a and then they insisted on an alleyway her as part of i don't want to see a trial tax but as part of the twenty three year deal that happened after he went to trial and as the issue about the vicarious liability explains he only took that twenty three year deal because his lawyers had incorrectly explained or had failed to explain vicarious liability can i ask you don't we have to find queerer in a district court's finding that he never was explained vicarious liability either have to find clear earn all those findings including the finding of credibility the trial court may go ahead i'm sorry no you're on i think want to issue here is that the district court didn't order an evidentiary hearing and there's some that the nd ignored this court's ruling and i think that should sort of cast a lot of doubt on the nd judge's finding on other issues so you know there are other really want to underline because he was in jail for six years waiting for this trial a big portion of the delay was due to this disappointment of which again this court explicitly said it was clearly erroneous and i just want to sort of underline how unusual this is multiple federal judges including this court said that there were errors here and so me as a defense lawyer that's like a big flashing neon sign hey we have good issues on appeal you can get this reversed on appeal we can get this indictment dismissed entirely or we can go back and so on i can have the fact of lawyer that he actually wanted so i guess i would just urge this court  thank you your honor adams likes the united states good morning the st i just wanted to apologize i wrote the court a letter pointing out a just a flat out mistake that i made in my own a brief and i want to apologize and i hope the co realizes that i've i just simply made an error and i wasn't trying to deceive the court in any way and i'm very much apologized but with respect to the appellate waiver the original plea agreement the eighteen year  agreement is not part of the record and i don't want to get myself into trouble by going outside of the record if the court would like i would be happy to file a motion to supplement the record if the court would like to see it on the record say plea agreement again i don't want to get myself into trouble by going outside the record and maybe it's just easier to follow a motion to extend the record a but i can tell you that we are in we always as far as i'm aware i'm not aware of us and my office entering into any play games that don't contain appellate waivers that's one of the that's one of the things that we see because as a term for for at every play agreement of which i am aware and i don't want to again it's tricky because it's not we don't have the document that i can point to but i want to say that i would be very very very surprised if the eighteen year plea offer didn't think again you're out unfortunately i wish i had a copy of the eighteen year plea and i would just look at it but i think that the twenty three year deal was probably more specific because they because they did identify certain you know particular arguments about speedy trial and stuff like that but our our our stock appellate waiver based on they waive their right to appeal everything that they're legally allowed to waive which doesn't include it be you know they're legally not allowed to waive a claim of ineffective assistance but other than that we have it as broadly worded as be can and that's when it and the like as not to mention that the twenty three year deal there's going to more detail just for the sake of being specific and careful but i don't i don't think it was broader right that i don't think that the eighteen year deal would have allowed him to raise anything besides ineffective assistance of counsel again advice with respect to that the eighteen year deal the petitioners claim as to that deal you know basically the prejudice is he's got he's serving five extra years that he that he should not be his  credibility finding so to speak but it wasn't in the context of a ruling on the news twenty to fifty five so and then of course we have so what we have this is assertions in the twenty to twenty to twenty five context contrasted with his lawyers assertions and normal are cases that you need to have an evidentiary hearing to resolve that that factual conflict maybe can you explain why in your view you have an injury hearing in the circumstances we have here is not  particular allegation added at a different hearing and specifically made it a credibility determination at that time when he was asking for a new lawyer in before trial that the court he said that he had a evidentiary hearing an evidentiary hearing is not required when the the record allows the court to make a determination that allegation is incredible and the end shot even goes further and it says that the court can base that determination on its experience with trial with a trial counsel and then saw it says that the court made a finding based on what it knew about these lawyers that the advice that the defendant was claiming would have been highly unusual in that case and i would say that is exactly what happened here the court heard the tillman make this allegation the court talked extensively about how you know the fact that he had had learned counsel the fact that they had billed over a one million dollars the fact that this case had gone on for six years and it just did not end there that the court didn't feel like it needed additional fact finding in order to to make a credibility assessment and so on and i think that the i think that under the shah case and the other cases cited in my brief i think the court was was well within its discretion in doing trial started and stillman sad hey i didn't know about vicarious liability i i want to do lawyer i want you know i'm not happy with how this is going and the court said i just don't believe you i don't believe that you didn't i'm not i'm not sure if it was your honor and the government's theory of the case it didn't it didn't matter it doesn't matter for by car murder whether he actually pulled the trigger nobody would make stance right for vicarious liability thinking about it i mean this obviously it seems to me this was a death penalty case that one corner at least contemplate the death penalty that's correct and so it went through the entire did it go through you know the d o j process such that in including that he has learned counsel is that right yes you are it's just it's to it's just the district court's position which i think is very defensible was this is just simply an incredible allegation i don't believe it i don't need to to to run this down further i do i just simply can't believe mr coleman when he says that he didn't know about mike harris liability until the morning of trial ok would be able to preserve the issue of a speedy trial rights violation on appeal and then on to seventy six dollars there's some more discussion of that where he confirms that that was never written down but that he already talked to the prosecutor and the prosecutors were willing to do that in exchange for that earlier flight so that's just an answer to judge call and this question i also wanted to address a question about vicarious liability because i don't think the court had enough information to make that decision the only information it had was this very short statement in the affidavit that was not responsive to any of the specific details that still make the lawyers had that in front of them they could have explicitly said no conversation never happened in your is the details of when we discuss vicarious liability they didn't do that then responded and then the final point i would make is that that judge had previously made erroneous factual findings there's an issue with the calendar and when the trial was supposed to be scheduled and the judge got it wrong is the discusses lying i think i was wrong and so for that reason i would argue that the court should vacate the conviction