thank you and good morning again judge me there i was here yesterday morning as well morning morning my name is tracy starved and i'm here on the half of my clients are not and i am i would like to reserve three that there are three issues in the case a confrontation issue regarding that limitation on juvenile adjudications there is a conflict of counsel right to counsel issue that is what i consider to be rather messed up in the sense that it combines a whole bunch of issues going on and then there's a sentencing issue just to recap the defendant in this case the government had  confidential informant a c i that conducted five drug and gun related transactions with a nineteen year old royce donna mr nava and i was present for three of those five transactions and the issue at trial was whether he was really present or was actually participating in them the government to prove its case against mr another and i offered the testimony of the confidential informant and this yourself donna who had now turned government witness and so the testimony  harmless error i think i still think that harmless error analysis would apply to confrontation issues they haven't really decided that issue one way or the other recently but assuming that it does then the government's burden is to prove that the error was harmless beyond a reasonable doubt and the government really makes no harmless error analysis in its briefs whatsoever going back to the issue there's a three part test that this court has employed and i think that what the government is jump straight to the third issue to show that there was no prejudice and basically skips over the first two issues or factors and i think that those first two factors are relatively important and it's well it's the third factor is considered to be the harmless error analysis i would tend to agree with you to some respect although it's not phrased necessarily the same and it certainly doesn't indicate that it's the government's firm to prove beyond a reasonable doubt  but i do agree that the first two factors show that reasonable doubt lies to the effect of the violation does it as opposed to the first two prongs which would establish the actual cross examination conducted by his then trial counsel determine whether or not the violation was presidential right and the problem that i have i think with the government's argument in this case is it seems to fall back on an argument that is similar to ohio v roberts which is that the witness in this case that the government or the defense attorney was able to effect motive of the testifying witness and davis the only evidence was that the knowledge that davis was still on juvenile supervision and therefore might be attempting to better his position in of his probation officer and the jury didn't know that whereas here the jury was told but by cross examination and a substantial amount of information to assess his credibility with regard mail this court indicated that where a witness is central to the prosecution's case the defendant's conviction demonstrates that the impeachment evidence presented at trial likely did not suffice to convince the jury that the witness that case say that the trial court should be skeptical when the government objects to impeachment of its own witness on prior convictions only when the government is able to point to a real danger of prejudice i think that answers  novenas motion to disqualify his current attorney which was never taken off the table and and the other is the constitutional issue i think that just going through the way that appeals are done obviously if the court can reach the issue on the abuse of discretion it doesn't have to get to the confrontation issue the problem that we have in this case is we have retained counsel of choice who the defendant believes has a conflict and wants to fire choice and the district court instead of telling him well here's what the problems that may arise with successive representation just basically drilled him and said well if you can't come up with anything then i'm not going to fire the attorney mixed question just because what happened would be a factual issue that the legal consequences of what happened will give a factual finding is that there was no confidential communication transmit so it would have to find that to be clearer before we could conclude that the there was a conflict in the district court as i read the transcript i found pretty clearly as i read it that there was no conflict if there was no confidential communications be independent coun appointed to enquire specifically into that issue so that he could have privileged communications that the district court wasn't supposed to hear assured him that he saw in the conflict and in the face of that factual finding doesn't isn't that fatal to i don't claim that there was reversible error here to find out it wasn't because i don't think that if you look to the three part test in the abuse of discretion the third factor in that is not that there has to be an actual conflict conflict has to be between the client and his lawyer and mr novena is trust and faith in his own lawyer and the court never got to that because it just found well there's no conflict we're moving on it never got to that third factor didn't do the inquiry and nobody talked to mr not enough era the confidential informant and as i showed in the brief during cross examination mr not you know there i said well my lawyer told me not to plead guilty that the prosecutor made a jump to the first thing was is the court is correct that with respect to the confidential informant the government did speak to a confidential informant i personally spoke to the confidential informant and basically what he said nava never really steps forward and says anything about his position other then i don't want to do that that's it the judge decides there is no conflict now being that there is no conflict mr doesn't have that situation where he is stuck with counsel he can get another counsel and this side of the issue and i think it's really like a red herring the issue is the money issue because during that the district court says i'll  counsel you can afford one and there is a conflict i'll appoint you counsel so mr nabhan i had that option available to him i think at this case the problem we have is there was no conflict so all of the attack on this by the appellant doesn't get anywhere because the fact is there was no conflict and i think that this report clearly gave him every opportunity and did everything necessary to see if there was a conflict  think the interesting issue is that when asked why if that as an adult these convictions would come in the answer was because they're felonies which i think is an answer which doesn't reflect the reality of the trial practice because as a general rule the district court does not permit the government to present in cross examination felony convictions there so it comes in i don't think is there is an analysis to this that i mean we also have to remember it has to be provocative and it has to be probative of the issue of need then just to say it's going to come in because it's a felony i don't think everything adult so now we have we do this analysis we look at whether we're going to bring it as adult we step back and go to the juvenile and say ok we're we're even going to be more selective about what we allow in this case it's interesting that the argument is being made that the that mr saldana has an extensive juvenile conviction history and that you really need to understand and not admissible but in the case of a witness it points out that there's an exception to that and just as mamma says the court to say to be satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence and that is that's what this is just so what is there going to do with whether the defendant has a bigger record than the witness but because the argument is being made that he has this extensive juvenile history so what has to come in well that's right to impeach him to make him look out well that's not right that's not the analysis isn't whether it is and the district not because well does it make a difference if he has twenty seven juvenile convictions one of those fifteen of them or twelve years old and he's down one thousand years old  the pens i mean that's what the judge just to focus on has nothing to do with whether or not the defendant has a juvenile record the question is whether or not the witnesses juvenile record in light of his role as a witness against the defendant may well be probative his credibility or there would be fair or not to have his role as a gang collector gang and force or that's what they were arguing that they needed to get that in front of the jury so they because the fact is there was so much other information that was ballsy and that dealt with the real issues and that was the issue of truthfulness those other issues that about being convicted of a residential that's merely that's supposed to be credibility but what does that have to do if you're involved in a conspiracy to deliver and that's what the district court was saying was it doesn't have any relevancy to that it doesn't have any pro and found this will not help the jury as to the issue of credibility it's not relevant to the issue of truthfulness and that truthfulness he let it stand and am i correct in understanding that he was not then under any further supervision and on any of those prior juvenile adjudications as was the case with the witness in davis versus alaska my understanding is that mr salt was not under any supervision whatsoever could have been under supervision considering the base of his conviction in that the time limit for that just for that but we don't know on the knockout round where the other is he wasn't allowed to cross examine him on that ok thank you both appreciate the argument