motion that he made for new counsel he presented that in advance of trial not far in advance but he raised it and the judge did not do much by way of considering the request and that is especially problematic here because under the case law person can be constructively denied their sixth amendment right to counsel if there's an inadequate inquiry by the judge in assessing the relevant factors or making the necessary inquiry and that is what happened here there's a troublesome feature of the colloquy that occurred in so far as the government's representative the a usa was able to remain present throughout the colloquy where the defense counsel had to explain to the district court what it is that what you are arguing that it must be your i think that it should i have argued must be paris doesn't support what my view is i apologize but i think that it is a bad practice to allow the representative of the government to be present when somebody is going to be there in response to the judge's question perhaps outlining what witnesses were contacted what the theory of the defense might be and those things happened here and furthermore i don't see any reason why the the government's representative should be present for this which is basically a private matter between defense counsel and his lawyer to say that to the satisfaction of the judges being well represented in the case i don't understand why the government would need to be present for that and the  the fact that it occurred here is troubling to me because the attorney took an adverse position relative to the defendant in saying judge i can still represent this person despite the person still being under a duty advocacy and loyalty to the client to act in the client's interests it's not for the lawyer to say judge i can still do the case it's rather for him to still zealously represent the client and do what the client wants done which was reasonable in this circumstance given that he was called a dumb ass and that was not refuted by the way given the lack of communication that was not refuted by the way and all the other things that happened in this case the lawyer should have gotten out of the case not argued to state in it and no the government should not have been present for all of this it should have been done next part in my opinion i mean it's the right thing about ryan's relationship with his lawyer that ryan can point to and say look this is where i was really prejudice in the outcome would have been different if i'd had a better relationship with my lawyer hard for me to say that there was a turning point of that type the witnesses that my client say should have been gotten we can only speculate about what the testimony might have been the defense that my client wanted given how it turns out in the hands of a different lawyer we can only speculate about again the inability to show those things the judge doesn't change the outcome of the argument because we don't have to show prejudice we just have to show that the judge in handling it the way that he did led to a constructive deprivation of my client's sixth amendment right to counsel by keeping the lawyer in the case should have been allowed to be substituted for i think that's the bottom line and we don't have to show prejudice under the case law that we've cited your honor so your point is taken but i don't think that it's in a little necessary to get the relief that we're seeking here and if there are no further questions on that point i moved to my next one which is that the distribution conviction should be vacated here because the government simply didn't present the necessary evidence to establish distribution which is one of the elemental requirements for the specific offense here so to prove aren't just are i mean i can't tell but are you arguing that the evidence of that they were sharable that your argument you're out say this exactly the government didn't prove the necessary facts to make the inferences that you were referring to so if my client had c if there was proof of his knowledge about what the file sharing folders were how they worked it cetera that would be all adequate however it was only the case agent who testified about what he knew of how the file folders the shared folders operated that's not enough because that shows what he knows it doesn't show what my client knew that's a very significant difference in this case and hasn't this circuit already decided that placing images in a share folder is is this court has with the necessary underlying facts about how the defendant knew that the file sharing forder operated so that's an important distinction that didn't happen but we're also making an argument and it's  a construction based on the plain language of the statute that circuit precedent isn't correct and so far it says simply making materials accessible to somebody qualifies as distribution because as a matter of a dictionary definition you have to give out something to a person for there to be distribution making it accessible isn't enough that's completely different one requires an active effort one is a passive thing and the two things cannot be well the that using the gas station thing as it did and i'm not certain though that the tenth circuit was correct on that and i think it was incorrect but we also have a rule of lenience excluded from the rule of one of the argument that we've presented here and i don't recall that being a feature in the tenth circuit case but this circuit is free to disagree with the ten circuits interpretation and i think that it should the dictionary definition should carry the day on what it is to distribute something well except this this is the evidence would indicate that he was fairly sophisticated in using computers as a sophisticated relative to me maybe but i don't know that much about computers i don't know nor why but i think this is the  like to well i don't feel i'm in good company on this one then because if you and i don't know enough about computers and yet it seems that this is fission and so forth it needs to be explained to the jury about what it is that the evidence really shows as opposed to a lot yes was how he he was using blocking programs prevent certain people from having access to some of the contents of his testified about some of the peer blocking and go surfing programs that were used here but recall that he said that the peer blocker i think was one of the things that was used to prevent  illegal it's annoying and i can't legally take it back but it's certainly annoying nobody wants to be subjected to it so using a program that defeats spammers doesn't chill that you're engaged in any illegal conduct so we can draw that right from the case agent's testimony in the in the case and to want to search something privately that doesn't again show that you're doing something that is illegal and so those programs do not in and of themselves allow for the sort of conclusions to be reached that the jurors might want to reach here in any event we go back i think in a stronger context to what the language of the statute is and even if we were to say that we would infer that somebody may have some sophistication because they use programs and i think that's a leap because i use programs and i had barely know how to turn the computer on some days it's like but using a program doesn't say that you know all of its applications and that you're using it for a nefarious purpose and that's not a fair conclusion for the jury to reach here jurors to reach here and it's also still a problem that if you have something in your possession but you do not give it out i think that is the more essential question here in this case on this issue as far as the third issue it was a computer that was improperly forfeited following the jury or proceed jury proceedings to determine guilt there had one say this is your strongest or if you it's a computer back he should at least  have had the jurors make the determination or i think that's absolutely correct and so the rule requires it wasn't done i think it was an oversight by the judge and it was mis play by the government not asking perhaps that this be done but it's done wong and so i think we are entitled to believe on this issue we'd like relief on all three by the by but certainly on this one i think we're in pretty solid ground merely obtaining a guilty verdict collapses the two different things that are required here you have to be guilty verdict and you have to have a jirga a jury determination and forfeit ability and the government's position essentially wipes the second part of this off the books that jurors no longer have to make the determination that is required by the rule so we don't think that they can prevail in that position fourth the judge cannot be imposed the distribution enhanced not under the guidelines it is a separate issue and i quite understand that my client's been convicted of distribution nevertheless the judges are supposed to make the determination about the implicate bill put ability of the guidelines a conviction cannot be in lieu of the factual findings to support the enhancement in my client even though he was convicted the evidence the judge pointed to was sophistication of the computer and the existence of the conviction to say that the distribution occurred we don't think that that is a correct application of what the law is what's required by way of  guidelines determinations and of course we take issue with the conviction itself and we take issue with the sophistication of the programs they're not sophisticated programs installing them on the computer and using them doesn't show distribution and so we take issue with that as well we ask for relief when former vacating the infirm count of conviction and i will reserve the balance of my time sophisticated program and it's a program mr hillis says there's testimony that it's about spamming there's also testimony that mr ryan obtained a list of ip addresses for law enforcement and he put it that in put that into the peer blocker program so essentially what he did is he put up a curtain and said law enforcement you can see what i'm doing from that the jury could very reasonably infer he understood exactly what he was doing he knew he was distributing child pornography of the evidence argument as i understand his use of the word stipulation it's basically we agree the government can prove distribution that's kind of how he lays it out of the rule twenty nine conference but he does tell the jury both in openings and closing there's only one issue in this case and its identity and your honors point that raises us assuming this court doesn't find waiver which we think there is in this case we're at least on plain there are standard for sufficiency of the evidence this court is called that the most demanding stance so the question is would it be a manifest miscarriage of justice to find that mr ryan knowingly distributed child pornography our position is absolutely not in light of this pier blocking program in light of the soccer girls program that let him share these files anonymously in light of the fact that this is a man who took steps to create video games this is a man who had sophisticated programs on his computer and he used a file sharing and the other courts that have considered this issue of noted when you use something called file sharing you can infer that the defendant knows you're going to share files to the extent that i did jack make a separate determination that he images for purposes or did he simply rely on the jury's finding of distribution from the guild who are shin of the games his generals computer sophistication the judge separately said in light of the fact that the juries found beyond a reasonable doubt that you knowingly distributed i'm going to find my propose and so the evidence that he knowingly distributed the guilty verdict all  argument that the government would be guilty of distributing pornography he understand your honor's point where mr ryan is asking for is he's asking for his computer that contained all the child pornography back his initial request on appeal is not that it be wiped clean i presume he would hope it would be wiped clean but more importantly he hasn't shown any well he could order it be wiped clean your honour's could certainly order it to be wiped clean but mr ryan hasn't shown any prejudice by the failure of the jury to return a separate verdict to forfeiture there was only one item in this case that had child pornography on it and that was this computer so when the jury says you mr ryan possessed received and distributed child pornography it was saying you did it via this about whether there was a use of discretion to deny the motion to substitute counsel this colloquy was not the type that this court has found insufficient the court is looked at colloquy where the judge says all right you filed something do you have anything else to say or the court listen to defense attorney say i can't represent this defendant and then the court says yeah we're going to make you represent this defendant or the court doesn't conduct a colloquy those are the copies that are problematic under this court's preceden of mr ryan's claims i mean it's not required for the court to hold the hearing on substitution of counsel with the government present is it is not required your honor but nor is this court prohibited at any point the reason the court i can only speculate as to why the court didn't dismiss him but i can tell you that defense counsel didn't ask that the government be dismissed and again based on my speculation and reading of the record what we have is mr ryan claiming that his defense counsel agreement or three potential plea agreements down his throat and i think in that situation there is value in having the usa in the room to discuss what's happened with these plea agreements what's been offered what hasn't been offered the court out of the room and then call back to the court certainly could have done that your honor but it was an abuse of discretion to leave the government in the room and the court did take steps as did defense counsel to say listen the government's in the room so be careful what you say defense counsel still represents you if you have a question about anything at this point you should reach out to defense counsel and talk to defense that's what judge miller tells the defendant at a certain point defense counsel says listen i could get into more details but i don't want to i want to preserve this defense for mr ryan but the point is defense counsel discussed all the steps that he took in this case and mr ryan was able to get out every point he wanted to about where he thought the relationship problem how do we know he got to say everything he wanted to say well he ends his first statement by saying that's all i have well that's all i have because look here no that's not what he says your honor he says that's all that i have at this in the hen house or whatever but i had a head he had other points presumably he would have raised them at sentencing when this issue is up again but the court says listen how is your relationship with counsel sentencing defendant says oh i have the same problems that i had previously it's about the witnesses it's about communication he doesn't raise anything else that he wished he could have gotten out he doesn't raise anything else on appeal that he was prevented from saying by either the courts colloquy or the government's presence in the room there is no evidence that he was restricted in what he could say finally you look at this court's press and looks at whether there's been a complete and total breakdown in communication mr ryan's arguing on appeal that there were some problems in this relationship and i don't think we can stand up here and just view that but that's not the question the question is whether there's been a total breakdown in communication between defense counsel and the defendant and in this case you have been engaging in phone calls two days before this colloquy you had them continuing to prepare a defense together they've clearly delineated task between the two of them as to how to prepare this defense that this report just didn't clearly error in finding this relationship was fixable and based on the defense that they put forward the defense he wanted you don't have to cease communications once you have a breakdown of communications with your warrior in order to drive the point home that the relationship is irretrievably broken you don't have to cut your nose off to spite your face and stop having communications with the one person who's able to represent you problem here is that this way or should have been allowed to withdraw from the case based on the record and the judge did not make the necessary determinations to show that the person of the way should have been able to state in the government points things that we don't know about what else might he say that would have allowed this those are extra record things i might be able to provide them i don't think would be appropriate for me to do so the point is they're not in the record and they're not there because the judge didn't make the necessary inquiries before ruling on the substitution of counsel motion the proper procedure must be followed with respect to the  of the computer and it wasn't it's not for us to say that something is impossible for us to prove prejudice the problem here is it's a procedural requirement that the rule requires it even if there's not an objection the rule was not properly applied we do not have to show prejudice we can point to the rule and believe that concludes the points i wish to make unless or is any other questions other than this i'm sorry the government mentioned about stipulation not in a legal sense in the courtroom it's only in the legal sense there was no stipulation and therefore the government can't say that there was an implicit one or one that was understood it when the counsel said that there was but then the judge said no there wasn't there's only something else that stipulated to we go with what the judge says there the commander of the courtroom there was not a stipulation thing that the government says that there was something akin to a stipulation with that have nothing  thank you thank you mr jones thanks again to both counsel and we move to the fift