your honor i would ask that the courts save itself a lot of trouble and reversed on the issue of the district court's refusal to allow the defendant to fire his routine counsel for trial  didn't look like communications had broken down he didn't look like the counsel and not prepared to keep he's been quite diligent apparently so proceeding at that point had also asked for a continuance so we're going to assume that he was fine with that so we have the codefendant apparently is fine with that we have no inquiry by the district court and no evidence as to the impact any delay would have had on the government counsel on the government witnesses on the evidence we do have about any problems with the leg is that we have f b i agents government agents and in town bank employee used these banks were in and you know crenshaw factor the court had set aside that day september thirtieth for hearing pretrial motions the court was able to accommodate the codefendant mr brown who came in to change his plea that morning and that's what they did all morning  on calendar to continue the trial that the jurors are certainly quote unquote waiting in the wings that that is the only evidence we have and that is an issue of court congestion and the court's schedule it's an important issue but it is one that is not often actually discussed in this court's jurisprudence when it comes to the issue of the impact of the delay i believe actually judge to wrote for the dissent in one case which then sort of became the majority and later cases pointing out that you know we also should worry before trial and says i want to be my own attorney and at that point the district court has certain obligations and under this court's jurisprudence its obligation in our situation when they say i want to get rid of my retained either he had already contacted counsel and if he had it would still taken several weeks i think that's reasonable i mean i can let someone already read all of the pretrial material or there is the possibility that he would have opted to go se once judge keller had done an adequate in korean explained to him the facts of life which is i'm not going to give you two months you know you can have a week what do you want to do if you have a week and i have i've been there for these confrontations and he says you know  to which would have been an unfortunate outcome i believe for everyone in the courtroom except for maybe the defendants since mr rose when he was pro se did a much better job on his verdict despite stronger evidence than my client did with counsel so it might have been a good they're always my clients do you know who comes in and says i want to new lawyer i don't want this lawyer i want to hire him and if the judge said well ok so are you ready you know if you have somebody else ready to step then what's his name i mean that was the problem it was an appropriate question what's his and then we might have had a different kind of trial but we could move on so my other issues are that i do think that there is an insufficient inquiry on the impact of the delay the verdict in this case to say the least was somewhat  and i think that that fact the fact that the the way that the pal members of the jury panel members have brought you know had voted was disclosed on the jury panel i think that at that point the district court should have you know taken the verdict that he did take we don't we don't challenge those three guilty verdicts on and then a little more careful in what he said to the you know he you know he didn't know who who was voting that it was not guilty and three not guilty and i think had there been any verdict of not guilty twelve had there been a lot of twelve say and even a number for twelve for not guilty and four wel guilty we'd be a lot closer to that as avoided by this court we had a ninety three and a three nine i think that the distinction in our case is only verdicts we're guilty verdict and the judge made a a lot of you know i  departure if sixty additional months for the gun count isn't enough because if you had imposed the points on the robbery guideline you would have gotten more than sixty months then you should have an upward departure to account for that so right now today my client's sentence because of the conduct for which he was convicted on count twelve is more than the sixteen months so the answer to that question depends on so many factors find the government's request him that's true and if you get you know not that much and given his later jury instruction i don't have a quarrel with the jury instruction my quarrel is with his statements when he sent them home talking about their just and fair proper verdict and that even though he did not inquire into the miracle division he was aware of the american division the jury knew he was aware because they wrote it and you make comments about you're not supposed to do this and and also  comment that you know we can make a decision with just eleven jurors and i think in a case where we have one vote standing between my client and a guilty verdict that was problematic statement to you that we could make a decision with just  these bases with the defendant at that time if the court also examine whether there was a breakdown of communication and based on what the defendant's concerns were what defense counsel said when he asked you know if you agree that there's no breakdown and what the court actually observed in court you found that there was no breakdown defendant seems to have seems to advance the rule that there has to be some sort of finding on the record regarding the need for a continuance an inquiry into the extent of delay that would occasion while the government would submit that the record did contain ample evidence of the fact that this was going to be a three or four week trial that there were still thirty thirty or forty government witnesses that there were the witnesses of the jurors waiting in the wings this court in both the garcia case  particular issue is looked at the need for a continuance and the delay that would defeat was one of the three factors among three that the court looks at and so the absence of factors in this particular case is not in the government's view fadal  discretion turning to the issue about whether the verdict was coerced i think everyone here would agree that that did judge keller and the counsel at his request prize and they thought they had a verdict form and it up having a numerical breakdown and the government believes that the district court did everything it could in a very difficult situation not to coerce a verdict on count twelve the court in fact explicitly noted that the it's primary concern was not to coerce any sort of verdict and it's important to keep in mind that prior to the time the count twelve was comment that depends council pointed out and at that point while the district court did say you have certainly worked very hard this is excerpt of record page three sixty seeking a fair and proper and just more importantly here are just resolution of the case the court did not say that you've reached fair and just verdicts it's unfair unjust resolution that you've worked toward it and the government does not believe that this comment made not is part of the jury charge not asking any jurors to reconsider their views does not rise anything close to the level of an allen charge defendant rose there were three verdicts there they were ten to that particular time in the jury came back and hung verdicts on all of those they didn't move and this court looked at the fact that if a jury is discriminating and how it is that they come back guilty and not guilty that's another factor to indicate that this jury was not coerced in any way shape or form by the district court comments secondly the the other point i wanted to make is the district court comment about we can decide this on eleven jurors was serious that we would need to proceed on eleven you know with a lot of jurors it was not part of any you know if you don't come back with a verdict we're going to knock one if you walk and make you reach a verdict i mean when you look at the context of the comments the court was very carefully saying we need to find out what's going on here he court which is something that i just learned in preparing for this argument with respect to the the claim of have ineffective assistance regarding failure to consider the extraneous information that i mean the government  believe that this vaccine should be delayed and permitted to be pursued in a twenty to fifty five where the record can be amply developed i did however notice that the defendant both pro se and his third counsel both moved in new trial motions on the basis of  has put in the supplemental briefs that the defendant even assuming that you know under under the present reading that he's looking at one hundred ten two hundred thirty seven months plus six zero hundred seventy months i think he went into custody in march of ninety ninety problem not discuss the case and we will then advise you whether you are going to proceed with eleven which the law permits or whether we're going to go back to twelve in which case your number twelve will rejoin you ok so that's something the whole the whole jury heard also we don't know that there was no movement to tend to for rose the jury finally got the message to not put their division on the jury form so they just had not guilty so the tenth you might have become eleven one so there may have been that one juror who w