the district court's decision to deny her live in her twenty fifty five motion without an evidentiary hearing and there are two grounds here the court could could reverse this district court's ruling the first is that miss johnson hiles was denied effective assistance of counsel when her trial counselor counsel told her that she had a not that he'd reached a non prosecution agreement with the government which provided that if she testified the grand jury and continued to answer questions by the government she wouldn't not be prosecuted the charges against her would be dismissed and she would be immune down the road she wouldn't be able to be prosecuted for that the trial counsel told her to go in testify against her husband the grand jury continue to answer questions from the agents of the government be available at the trial of her husband his codefendant and then all the charges would be dismissed and she would be immune she did those things counsel she's indicted just weeks after the grand jury testimony am i right she was the grand jury testimony was in october of two thousand and one her trial date date was scheduled to be the following week so she goes into the grand jury to testify the week prior to her scheduled trial and she's tells the grand jury a lot of extremely damning evidence she says she  was aware that her husband had been had asked her to bond this individual out of jail he later tells her the reason he was bonding her having her bond him out of jail was so that he could murder this witness against him in a state court action  she tells the grand jury that she went and got the firearm and provided it to an individual to who eventually was the killer and killed this individual so she provides a plethora of information that at the grand jury at the grand jury the week before her scheduled trial date and then as soon as she does that the government moves for the dismissal of her trial date and she had previously met with the government agents and on four separate occasions she then again the meets with them in december of that year and then doesn't really hear anything from the government for quite some time in fact from two thousand and one to two thousand and five her counsel says well i don't know whether other this case open or closed eventually in two thousand and five  according to misc johnson house trial counsel he received a letter says we would like for mr johnson house to fly up to st louis she was living in georgia at the time to meet with us in preparation for trial against her husband and according to her trial counsel he tell i can't go in fact that he tells her that he has a family obligation but in his motion later for specific performance on this agreement this non prosecution agreement he tells the court tells the court that it was at the insistence and the request of the government that he not attend this meeting between miss hiles and the government agent so she flies up and according to the government gives statements that are not completely consistent that she does a bit of crawfishing i think they would say and they've been subsequently indict her five years after four years after the initial now as of the end she can no longer have any reasonable belief that there's an agreement right so we look at so we look at what's harmful to her in terms of prejudice but what happened before that and you are you really saying it's our grand jury testimony that is really harmful to her i believe so she  believes throughout the time she's cooperating that she has an agreement her counsel to i'm not i'm going to prejudice ok i'm kind of assuming you're right about everything and now we're just looking at did it really hurt or did it really prejudice or and i think you're relying on the grand jury testimony absolutely that's that's the most prejudicial buff or tell me the most prejudicial item from her grand jury testimony that was used against her the most prejudicial item it would be she essentially went to the grand jury and said i had the that's not prejudicial right well she's bonding out the individual to try to go and kill this witness and wait i thought she testified that tyrese if i have his name right did not tell her why he wanted a bond i thought that was her grand jury testimony initially he did not but subsequently he did any told me that the reason that he was doing it was to kill this individual and when that statement comes in it not only does it provide the mens rea at her own trial but also corroborates the key government witnesses at the rally against her participation after that was it the afters he knew she knew that that's why he was out because it had an effect him her getting him out  wasn't after that that her participation in getting a gun and giving the gun to the to the murder yes she goes and get because of initially she bonds it's individual at the jail that individual does not become the killer i guess in the government's case he gets cold feet he doesn't do it and then she gets the same going to she provides this gun to the subsequent individual but now it doesn't feel right now if she knows from her husband why she's doing that act certainly now what's the timing when did her when did she say that her lawyer told her that there was some sort of agreement non prosecution agreement well initially the lawyer tells her that there's just the up the proffer letter and she knows about that in their signed proffer letters there are typical of criminal cases i think and but then so prior to the grand jury testimony she gets this non prosecution she's told if you testify in the grand jury and and you continue to answer their questions the case will be dismissed they won't prosecute you and that's the only way that would make sense because otherwise they're right the lawyer the lawyer confirms that he confirms he told her that he does in his motion for a specific performance he says there was a second agreement not a proffered this second agreement that was the non prosecution agreement and that all these subsequent statements were made with this non prosecution agreement mine in the court says the government says there was no second agreement of course he didn't have it reduced to writing which would be fundamental in a situation like this especially if individuals facing a life in prison is going to going to the grand jury without the proper proffer agreement protections that the proffer agreement would protect most of these statements along the way but it wouldn't protect her when she goes under oath in front of the grand jury so that's why it would certainly be necessary and and a prudent lawyer would reduce that to writing prior to having her go into that to the grand jury doesn't do that he says it was an oral agreement although i point out for the court  gs eleventh circuit case thompson which says certainly it's almost impossible for courts to interpret these oral immunity agreements your wife and i have my point is just timing is so before she went into the grand jury you say there's evidence here that she says or maybe confirmed by her lawyer that there was talk about some sort of separate agreement that she would not be prosecuted if she testified at the grand jury she says that before testimony correct and then her lawyer files of the motion for specific performance then they have an evidentiary hearing that after the evidentiary hearing the lawyer also filed a memorandum in support and i don't think that i don't want to mislead the court that he specifically says this is the date of the agreement because that's not true he never he never pinpoints it unfortunately for everyone but certainly it would be logical to that's why someone would go in into a grand jury and testify and that's what consistent with what she says was a big part of the problem though is even assuming all that and even assuming the performances to fish and game back to john events question she lied and from the grand jury right well any non prosecution is going to be dependent upon him even assuming there is a nonprofit even assuming there is an agreement it's going to be it's going to be on the assumption that she gets truthful useful testimony right i certainly can certainly understand the logic of that position that's the position the court below took and i'm sure that's what the government would probably say whichever statement they want to point to they can point out some inconsistency is or or what they would call lies from mr johnson house however the because they had that information that they then dismissed the case the following week so there wasn't any at that time and then she meets again and perhaps it's not an absolute defense to your honor's question but when she meets a subsequent time four years later in st louis she goes without counsel who certainly your counsel would want to prepare and say look let's go over what you testified previously and explain the importance of being truthful at this point all those things that doesn't happen counsel is not there so while i can't defend all of her statements it's true certainly there are some that are inconsistent  i think counsel's deficient performance certainly contributed to that to the extent there was an agreement and you know and i think everybody agrees it's it's very fishy you would have an a lawyer so he had one and so what let's take a man as word it's going to be dependent upon truthful useful testimony and her ability to testify at her husband's trial the government didn't get any of that did they i believe they indication there that every one of these questions has to be truthful there's not that the answers have to be truthful there's not that explicit requirement like there is in the us offer i mean when you don't have an agreement where the t won't prosecute that would be i didn't do it because i would agree that a reasonable attorney would never advise his client to not tell the truth when you're being questioned by the agents in fact you were advising that it's against the law to do so whether the were not interpret in the contract but rather unfortunately what she was told by counsel that wasn't just was i say in the counsel told the non prosecution you don't have to tell the truth she's saying that he told me there was a non prosecution agreement  i'll have to do is keep on answering their questions that's what she says and that's what he says the truth that's what he says in the end i know i'm not defending that action of counsel on but she but she got well i don't want to beat a dead horse but she did get in front of the grand jury i presume and i and roles raise your right hand and swore to tell the truth so even if he hadn't or to tell the truth she promised to tell the truth absolutely and we think she did you know they may point out that she didn't think that she didn't but we think she did e court below pointed that out was in regards to the second claim which is that she had whether she received company regarding the guilty plea and they say she even if he would have told her you ought to take this and look your exposure is life they're offering you six years they have a strong case even if you would have told her that she wouldn't pled guilty because she came to court and she said i'm innocent she pled not guilty she insisted on going to trial etc etc and i would urge this court i couldn't find a thing from the from this circuit but i would follow the logic of the sixth circuit and griffen or the leylandii case out of the eleventh circuit one which they say that replete repeated declarations of innocence don't prove that a defendant would not have accepted a plea bargain in fact a defendant often comes to court and maintains  innocence until they are faced with the odds at trial the risk of going to trial do we get this ninety five percent plea rate in federal court thank you r the members of the court my name is christian steven simon had the privilege of being here on behalf of the united states and i'll just touch on that second issue just very briefly and then i would like to move on to the first issue that the court discussed for most of mr goodwin's time  the cases that mr goodwin just cited are entirely contradicts circuit law i've cited anglin in stevens and sanders in my brief those are contrary to the sixth circuit decision and griffin and so i would ask the court obviously to follow its own precedent in fact it's obviously required to do so  griffin is an outlier even the sixth circuit applies that on evenly and in some cases not at all now regarding what's or how long if a defendant doesn't take a plea agreement does that mean there forever however for calls from in going to trial in moving for judgment of acquittal etc but we have more than that here and this court has said clearly that these things that we look at the record we don't just rely on a defendant's post hoc self serving representation that if only but for mike my counsel's advice i would have pled i was ready to plead and he advised me not to and we went to trial and i lost but i would have only if only i had better advice but what we have here is not just going to trial not just moving for judgment of acquittal repeatedly not just objecting to all the facts in the p s r that were proved a trial not just a trial motion denying all the facts but her statement at sentencing for example where she insisted that she was innocent that she was being sends quote unquote for nothing and that that's very similar to in steven's court denied a very similar claim by defendant who had testified at a post trial hearing and maintain his innocence and that's essentially what missiles did when given the opportunity at sentencing she maintained her innocence and so that's what we have here i think out of this this court's cases stevens and the other cases clearly she's not entitled to a hearing on that particular issue this court requires more than just a defendant's post hoc statement saying i really want to plead guilty but my my lawyer told me not to now in the first issue the fact with all due respect to mr goodwin the fact that he's informed the court of today about the timing of when this supposed second agreement happened about whether or not mr tiles had to continue to be truthful i don't know where those come from we had two hearings in front of the district court in two thousand and five on this exact issue there is no evidence in the record of any second agreement and i would point out that judge burton has already found that on direct appeal he wrote the direct appeal of this case and affirmed the district court's finding that there was no agreement there was no evidence of and it doesn't go into what counsel to leave the client what the client believed that in effect if that's true judge and that's their point is we've had no hearing as to test what the council says versus what the client says but what we did it we did have two hearings on the issue of whether there was in fact an agreement and if that was before you could ask the counsel what you really say and ask of the defender what she really said well i tried to ask mr iles exactly that and she invoked the fifth amendment she invoked the fifth a man when i asked her well we're going to but this is before trial right yes or yeah well see now trials over yes and now twenty two fifty five as you know often different things are said right yeah yes but but that's the thing is there is nothing there th directly to that point those are not my saying that she wasn't cooperative that's not my saying that she was untruthful the courts have found that the district court found it after the magistrate found that in his r and r this court has found it and on direct appeal the district court found it a second time and the twenty two fifty five i mean to me that we almost have to start with the proposition that counsel was to fish and i may be wrong but because you're right everybody agrees now there was no agreement but he he represented to me as high as in his motion if we don't know exactly what he said to her but in the least in the motion he represented that he told her there was an agreement well there's no representation of him ever ever to assume that or least we even that we have to send it back for a hearing to find out what he did tell her but let's assume he told her that and that was yes ocean so then you get to the issue well where's the prejudice and i think that's much much stronger argument yes and no i agree although the just briefly and i don't want to i don't argue the first point if for sake of argument we want to concede that then that's the government's position is not conceding that but i understand your point i would point out from the very beginning if you look at defense counsel pleadings back in two thousand and five when this supposed non prosecution agreement first came up it was shifting sands from the beginning initially it was well you can infer it from the proffer letter because the proffer letter says well when they go she ate in the future we may come to some other agreement or that but just based on the fact that the indictment ultimately was dismissed you can infer it but there's no evidence anywhere of the agreement or his discussion with her about it even after all we haven't had a hearing counsel now that's so i think you're i'm i thank you for hearing now i think you're going first point is that is that if there are untrue on there or if it even if taken is true it doesn't matter there's no prejudice then we don't need to hear it ok now let me ask you a question about that yes your opponent says you take the grand jury testimony and you get the  get her knowing of the actual plan and what was going on here and that's the critical time to connect the dots has to her as the grand jury well the first point is that the agreement didn't exist but the alice because there is no evidence in the record what mr goodwin and ms hiles have done in this appeal and in the twenty to fifty five is say well let's look to the pleadings that defense counsel fire filed where he claimed that there was a non prosecution agreement in those pleadings he makes very clear that and he argued at the twenty to fifty at the hearing on the motion for specific performance mr hill the previous counsel that this this came about after about october twenty fourth of two thousand and one that's one week after the grand jury and and weeks after four different statements now the grand jury's the only one admitted at trial so that's if there's any prejudice that's a prejudice we're talking about missiles could not have relied on any second agreement that was entered into a week after now we pointed that out in our brief in the reply brief for the first time we hear well this second agreement was contemporaneous with the grand jury that's what's in the reply brief there's nothing to support that and it's contrary to what is said in the opening brief what was said in the twenty two fifty five motion and what mr hill's original allegation was i'll point out in the let me try it on you this way what is the most damning thing from the grand jury testimony you cannon up and he got the gun now we proved all there is nothing in that grand jury testimony that was not proved by other evidence nothing including that point and i would point out when we're talking about the prejudice in this case the choice was not between the grand jury testimony and nothing if miss hiles is they say would have refused to testify in the grand jury because if she hadn't known if she had known that she would have non prosecution agreement which again is impossible because the their own allegation initially and up until the reply brief that agreement came about a week after the grand jury but the point is in her very first statement june eleventh of two thousand and one the date of the proffer letter clearly everyone agrees that was pursuant to the terms of the proffer letter no second agreement she admitted that she obtained the gun from say million or so and told him that she was getting it so that they could take care of course smith and then she gave it to mr carter david karger and david carter said he had killed someone before and was going to kill smith now obviously if mr ailes had refused to testify in the grand jury or if this had never come about then we could have used any one of those other statements certainly if you but you didn't use those previous statements we did she got on the stand and then you could use a warning you could use them for impeachment of she testified but i didn't think you could use a proffer statement as an affirmative defense well it's according to the terms of the proffer letter and in this proffer letter judge if she was untruthful than any promise of use immunity was no amendment says i'm not saying anything yes you could have them put the proffer in i don't think you could under the terms of the proffer letter she had to continue to cooperate and provide information if she had refused to testify in the grand jury refused to testify at trial  agree with herman well the terms of the proffer letter would which is a proper also talks about further agreements and i mean there's a lot of things in the press yeah there's a lot of things in the proffer that have to be done before you can actually use a proffer statement but the point is that might my initial point obviously is that the agreement there allegations agreement came about after the grant only after i pointed out in our in our opening brief that that would mean there could be no prejudice did it suddenly become the the  hiles that in the reply brief that they were contemporaneous and now here today mr goodwin argues that the group was before the grand jury which i don't know what he bases that on if he's basing his argument regarding this supposed second agreement on the pleadings of defense counsel i point out that if the hearing on a motion for specific performance that mr hill the defense counsel said it's the position of the defendant that there was an agreement entered into on or shortly before october twenty fourth two thousand and one the only relevant issues relative to specific performance occur after have to occur after october twenty fourth two thousand and one and for that reason it's not necessary for there to be an inquiry of statements from defendant prior to that date of course that would include the grand jury that's in the transcript of that hearing at appendix one fifty so what that means is the green was entered on too short on or shortly before october twenty fourth two thousand and one that not a petition or statement before october fourth two thousand and one including the october eighteenth grand jury were relevant and at the  would point out again the petitioner invoked her fifth amendment right at this hearing when i asked her about whether she was truthful cooperative etc as late as the twenty two fifty five motion in this case which was what the district court decided here  there was no argument for the district court that these were contemporaneous or that the second agreement came before the grand jury testimony and so they're stuck with that and in the twenty to fifty five motion i quoted said appendix twenty three trial counsel only explained in exchange for the statements made by miss hiles to the government agents up to the time prior to the dismissal all charges would be dismissed because of the statements she had provided to the government at this point miss tiles had provided information to government on numerous occasions so what that tells us is that the council's alleged alleged advice regarding the agreement was after not just after but as a consequence of the prior statements and that would include the grand jury that at this point those are his words at this point that is the point that counsel advise mistrials she had already provided information in information on numerous occasions which again would include the grand jury which was the only statement admitted against m at trial did the jury get all of the grand jury testimony or just parts how does it how it worked in this case just parts just very how many parts well there are there you can break it down into six points there's a total of fewer than four pages of transcript testimony regarding the the grand jury actual trial transcript there were six points two of those were admitted by defense counsel as as i think you pointed out judge been so it was favorable that when she bonded out david carter on august tenth of two thousand after mr carter had a conversation with kyrie stiles about killing smith she claimed in the grand jury that she didn't know now later we found out that that wasn't true but the defense counsel wanted to put that in and we  put it in there were six points two of those were defense counsel's points what's the other one that was defense counsel's point of the six and let's see  i didn't see another one of the six that were favorable yeah there was one other and oh it was that the reason that she signed the papers was just to be sure she was told she had to sign to be sure that david carter would show up for court on his bond came in recalled that particular transaction identified ms hiles as the person who had signed it and indicated that she had told him she just sold the card to david karger again that's all the evidence independent of the grand jury there's nothing in that grand jury testimony that we did not otherwise prove with with other evidence also judgment or you raise the issue with her failure to cooperate obviously she under either the terms of the proffer letter or under the terms of the the second agreement that they alleged  she was required to cooperate and be truthful and mr goodwin indicated that she was just required according to previous defense counsel to sort of show up and answer questions truthful or not seem silly well that's that's not the case miss i was able to get some answers from her despite her invoking the fifth amendment at appendix three twenty she testified at the second hearing on the motion for specific performance that after this dismissal of the indictment she was required to continue to tell the truth and fully cooperate with the government and i went through a litany for about a page and a half with her about her responsibilities whether it's under the proffer letter thank you thank you for your time ms hiles points out the need for an evidentiary hearing in this case in his in his pleading alone trial counsel indicates that basically after this case was dismissed which was just a week later he knew he didn't know open or not for years so if not prior and to the grand jury testimony if it wasn't the motivation for her to testify when else would would trial counsel have have reached this agreement since he only he only really do anything for another week gillon thank you both for your arguments and we will take the