good morning your honor then please the court your honor this case involves really two parts in terms of the appeal that we have made the one part of it is the evidence that was introduced that we think was properly introduced the second part is the in effect the systems counsel claim that arises from the circumstances in this case this case actually has bent to some circuit before and at that time it was sent down on the limited remains which in the government's response they say was at their request they say that they remain for to go back in front of the district court was for the purpose of developing a record essentially of whether or not you know fact this is since the council had occurred what happened when it came back to the district court however was that counsel the complaint of counsel in effect and allegedly ineffective assistance of counsel was removed from the case they withdrew at the time that they withdrew it appears from the record that the district court then assumed that the ineffective assistance of coun had been cured it's our position that the very man has to determine whether those attorneys could remain on the appeal and that required for the proceeding from the district court to determine whether there was an actual conflict because of the investigation the criminal investigations counsel and once counsel withdrew that eliminated the need for any further proceedings and so you counsel was appointed and the appeal got back on that that is correct but it's at that time when there could have been a record felt that it merely having and this is from the government's in their reply to all our appeal that it's at that point that essentially it is cured that the ineffective assistance of counsel argument has been cured by the removal of trial counsel at that point well it's certainly true that it gets the appeal back on track it also fails of counsel took care of the ineffective assistance of counsel the conflict problem with respect to the ongoing criminal investigation of both friendly he was removed and you counsel was appointed the appeal proceeded you still have an argument that there was an ineffective assistance of counsel during the trial and sentencing because he was not conflict free at that time but you've got to show either an actual conflict or if there's only a potential for conflict at the potential for conflict actually cause the prejudice that the blake case gives those are just too analytical frameworks and the first one being actual conflict it's our position that mr brindley and mr thompson operated under an actual conflict at that time the time range that the indictment that is handed down by the government in this case alleges that there were illegal activities going on throughout the time period when mr lewis we had this or our representation the time period in that complaint goes throughout the representation during trial during sentencing and all of those parts the the conflict would arise by virtue of the government investigating counsel and indicting counsel and the indictment came long after your client was sentenced so the allegedly criminal activity that's involved knowing the date the indictment comes down does not erase any criminal conduct that could have been going on throughout that the period that was charged in the indictment additionally the of the investigation that period of time the point at which a target knows about the investigation has been informed by the government of that they're the target them in the investigation that the conflict arises because counsel would do something to protect himself from indictment against him in other words would would be inclined to side with the prosecution to save his own s rather than zealously represent the interests of his clients against the prosecutor in the case the fact that council is engaged in collateral criminal conduct isn't what creates a conflict except that when we have things like ethics rules for lawyers all of those are done for the purpose of assuring that car that council is competent that they're ethical that they're doing everything that is required for their client the conflict issue or can arise merely from illegal conduct going on at the time at least in the perception of the government it's not whether or not mr brindley perceives it but in the perception of the government that is going on according to the government throughout the period of time when he represented mr lewis to the house that create a conflict of interests on the attorney's part the defense attorney's part it's a defense attorney doesn't know on the on going investigation interests put in conflict with his clients whether or not he knows that there is an ongoing investigation is something that hasn't been established by the record the fact that he's involved in the illegal conduct is is my answer to to the question whether or not that conflict existed whether or not there had been illegal conduct that was charged by the government is clearly established by the record from the indictment saying that the charge period and the illegal conduct went throughout the representation of mr l when say the rest of your time united states there is nothing at all in the record to indicate that there was either an actual or potential conflict at the time of the defendant's representation by trial counsel resulting from the subsequent meant of trial counsel by the united states attorney's office that indictment came some eleven months after the defendant was represented at trial and three months after he was sentenced in any event even assuming the existence of either an actual or potential conflict at the time of the defendant's representation at trial the defendant has not even alleged that the trial counsel's performance was adversely affected by any such conflict or that there was any prejudice resulting therefrom just one clarification point the defense counsel stated that the government requested a limited remain by this court for the appellate case to be reminded to the district court to explore the possibility of whether there was a potential conflict as a result of mr brindley and mr thompson being notified that they were targets of a federal investigation that limited remained had nothing to do with whether there was an ineffective assistance claim  time of the trial or the sentencing but was merely a request by the government to ensure that there was no potential conflict by the defendants representation by mr brindley moving forward in the appeal and if there are no further questions from the panel the government assisted the trier of fact it was specialized knowledge that required information pertaining to cell towers and principles about the signals that are emitted from cell towers and what that means as far as what a phone record can tell us about the location general location of a particular phone at the time that a phone call is made show rashard was raised and then rushed off to school or something nasty was he was who do you have experience in this in previous trials or he had testified seventeen times previously before the lewis before the defendant's trial in this case been qualified as an expert seventeen times both in state and federal trials he also testified at court and we presented to the district court prior to the admission of his testimony the fact that he had received over three hundred fifty hours of training from the cell site providers themselves so from the major companies he had received that extensive training in addition to that as a federal agent who agent rescue testified that he's in a violent crimes unit within the f b i he's used that particular expertise cell site location data hundreds of times to locate you again and in response to what the government has put forward before your honor's today the prejudice prong of it as i think we discussed earlier is something that if you look at the line of cases from holloway versus alabama they say that they're not going to go into the niceties of deciding the amount of prejudice not going to try to weigh out the prejudice from that and i think that that means that if there is a fine and if there is an actual conflict the performance and prejudice one doesn't go through the record and look for instances where performance could have been different and i think that we've made that clear in our brief and how we're going to how could it have been i don't know how could  have done better that that's exactly the analysis that holloway line so that you don't have to go into if there's the actual conflict then combing the record or places where one might have done something different is not within the purview of the appeal if i may speak to the expert testimony that the court inquired about there are a couple of problems with the government's analysis of it one is that saying that there have been three hundred fifty hours i'm being trained by the people that work for the companies there's not a team mobile or an eight hundred eighty commercial out there that says the great thing about our company is we know where your phone is they talk about service they talk low price the engineers that work there are concerned with call faulty the location of the phone is a different matter and nothing indicates that those engineers work on locating people's phones which is what this expert was qualified to speak to additionally this is a dawber case and to say that hundreds of times a person has been found either a kidnapped victim or a suspect has been found by being able to to find somebody doesn't say in those other cases whether or not there was a good address whether there was a great description of the person whether there was a habit of the target that they were looking for being in particular places all of those would give you their reliability would say whether or not the the factor that caused them to  that make any sense or just some dubious legal rule i don't think so i think it goes to the important of the six men men and a person's right to have been understandings if the if it's harmless if purity above still i would not it must be no taint i'd don't think it's acceptable to have somebody as skillful as they may be as mephistopheles one of his what if he'd been disciplined before if you said many couldn't handle any criminal cases because they'd all they'd all every conviction would be reversed for a new trial as an absolute bar absolutely not well i would  there's an allegation against their counsel do you want to continue with this person knowing that there's an allegation against them and in this case there was for a contempt citation out of the central district of illinois at the time and that exact remedy  was used to remove so the defendant could have waived if primly had been under indictment already the defendant could waive that yes ok well thank you very much