factual matter is that accurate and nd if it is accurate what are we to make it so it's not accurate in the sense that four times after he filed that motion mr diaz filed letters with the court complaining that mr cowen ascii was not communicating with him but but he doesn't say after that i don't want this guy anymore worst before he didn't want somebody on the case he knew how to make that know and he was pretty explicit about it so this and he's not saying that after that the problem is that there's no we have no way to know whether mr diaz knew that mr cowan ascii made that representation to the court mr cowan ascii put that representation in a continuous motion actually on the nd page of the motion and it was docket it on the docket as just as a continuance motion so mr diaz reviewing the docket would have no told mr diaz when he ripped mr o'brian that if you asked for another lawyer he was going to get one but so what he said is it isn't what he said that if you asked for another lawyer and in circumstances like this you know he said that if i grant the motion it will be the last time so there's no so whoever you get off the panel the mat will be and the government when the government puts says that it was an accurate statement of the law i think accurate that that was what i mean you know what he said is i grant the motion will be the last time whoever you get the panel that will be it so the next time you come in or have a disagreement or feel you could work with counsel or something like that the result would be would be that you'd represent yourself also on page forty one of the appendix the court told mr diaz that if this was the nd request from your counsel that his answer would be no you have to lawyers you can represent yourself mr diaz clearly understood or believe that the court wasn't going to grant him another attorney because he said on page eighty seven  the appendix that he felt between a rock and a hard place he wanted to get rid of callan ascii but he didn't want to represent himself so i think the fact that you know the court had expressed a one substitution policy which is improper and that mr diaz had no way of knowing they can ask you had made this mean isn't that's something i don't think so because i don't think you can assume that he knew that he had withdrawn that request again it was not in a motion to withdraw it was just in a continuance motion he didn't we have no way to know that he actually read at should set off alarm bells with the destructor or that there's something seriously wrong with the attorney client relationship here and it requires further inquiry are you saying that that's the problem that there was no inquiry what you that's that's the error that the court neither never ruled on the motion but didn't conduct the inquiry into the requests for new counsel that this court required wealthy and also vacated convictions and mcmahon for the failure to make the inquiry and we have no we have i mean come on ask it doesn't it doesn't rebut or respond or  consent and then we have the trial of a sixteen and there is nothing that he says at the trial there is nothing in person or again he never says your honor this mean i can't go forward he's not communicating with me i counsel because it creates a conflict of interest between the attorney and the client these need to be handled a little bit more carefully and that's why this court has required on the record inquiry in the presence of the defendant what he may when you say we've required it in which case if we said that's a upon counsel's communication that he knew of no reasonable basis for his discharge and counsel's emphasized in the original of the opinion so i think that shows that just relying on defense counsel's representations it's not enough now and hodge the court said that you could just rely on defense coun representations but in that case the inquiry was made in the presence of the defendant and you had the opportunity to respond and this court emphasized that it will but it was not said in hodge hey wait a nd this is different because it's in the present it was a statement that the court was titled to rely on the representation of counsel right well i mean i think hodge emphasized those two points because i mean that's the way i think you can make sense of how john mcmahon mcmahon's seems to suggest you can't just rely on says you can and in that case it was in the presence of the defendant you have the opportunity to respond but the other point i'd make not just the general point that motions for new counsel are different but the record here i just think is so uniquely bad in demonstrating a breakdown in communication that i think that in this case you couldn't just rely on counsel's representations what do we have make of the fact that he had the same problem with the st one when he actually didn't have the st same problem the st or he didn't like his st lawyer but he acknowledged this is a page reads as i understand it is that next time you would come in and have a disagreement or feel you couldn't work with counsel or something like that the result will be would be you will represent yourself this case that's the actual language right yeah i mean he says that right after saying it'll be the last time whoever you get the panel that said yeah this is but that's the statement next time you would come in and have a disagreement or feel you could work with council or something like that the result would be you represent yourself and of a government that's an accurate statement of the law that in fact it requires something more than your mere disagreement or that you don't like working with somebody that would be accurate all about that if you interpret that statement that way to be fine and in fact even if the court didn't have a one a representation from defense counsel saying we've got this result we can go forward let's not ignore him that's accepting what counsel's representation is what we want why why is it reversible lawyer to rely on what defense counsels because this court said that when you request a new counsel the court has to do it on the record inquiry into the reasons for the defendant's dissatisfaction and you can't just rely on defense counsel say so in a written motion for a continuance that we have no way to know if the defendant even knew it was filed so you know we don't know whether this report was in forcing it's one substitution policy was relying on callan ascii simply forgot about this because there's nothing in the record the court never conducted an inquiry representation would seem you know i mean when you have such a clear factual dispute between defense counsel and a client on whether or not they're communicating and whether or not defense cop the client wants to continue with defense counsel that's really a unique situation and that's why we require said i've investigated this and based on the investigation i can tell you diaz was bagging for guzman government doesn't even defend that testimony in its response pretty this is playing air yes so how does this affect substantial rights when you get right down to it there's plenty of testimony short of the test for substantial rights as whether this court can be confident in the outcome or whether there's a reasonable probability that the verdict was based on the inadmissible testimony and in this case the government was very deliberate in how it used officer gullas testimony put him on testimony the guy was in it up to his eyeballs that there is we've got a circumstance here where there's a clear probability that would be different so the only direct evidence of his involvement in this conspiracy was even even lawyer is challenged as mr kyle ascii made those arguments and they lost well it's not a sufficiency of the evidence test you know we can still win even with it without because his testimony the jury still would have convicted the question is not was the evidence sufficient to convict the question is is there reasonable probability that the verdict was based on callous testimony and given how thin i mean i agree that there was evidence against him but it's where you put their evidence than when you say given ho here you've got two people coming or they're dirty they're dirt all over the courtroom and it's pointed out but the jury's intitled to listen to them not just listen to them but you know that's pretty that's when  look defense perspective and then because they're biased use it they may have convicted without dulles testimony but that's not the question on kronk three and the fact that they were dirty and it was pointed out is the whole point here you know what if  testified but if you throw that out you still have all these tape recordings and while he may have thrown in you know that's talking about heroin or whatever you have them talking to each other and you know they're not just passing the time of day i mean the you know there's multiple interpretations you could take from these calls now ther girl is testimony should have been ok because it was all coded i mean when you how can you have that both ways mr sherman on the one hand you're made the argument quite persuasively that girl is testimony is completely improper because these things speak for themselves and then stand before us and say well there's multiple interpretations here so that's really not significant evidence he's going to be both just what the court said in jackson is not a cold meaning is unclear but there's no code that an officer can't you believe the cooperate as it came down to do you believe the cooperate and you believe the words out of mr dio's his own mouth as recorded in these papers were see do you do you believe how do you interpret these calls and do you believe what the cooperate are saying ok there's one there's one of the st thing i would say is that mcmahon and wealthy both rest their holdings on the fact that there was a deprivation of the right to counsel under the th amendment because both of those defendants went to trial pro s without representation and there was no meaningful inquiry into whether they had a knowing and intelligent waiver of the th amendment right to counsel a trial judge had but answered the specific question that is what mr schumann's assertion  on actually holds there must be an on the record called to say that or not your i don't read it to say that and i read the hobbs decision which came later to say specifically that a failure to conduct a one on one colloquy with the defendant is not reversible error the court did not hold unwealthy that such a colloquy between the judge in the defendant is required in every instance and we do not require that now such a person a requirement would be encroaching into the province of the trial judge and this is the key language or are we recognize that the district court can ascertain whether good cause exists by using various sources and we decline to require that in every instance it must question the trend directly never held that the only reason that the  of defense counsel was ok was because the defendant was present it said specifically the various sources are fine that all you need in the record are the reasons for which the defendant is requesting substitute counseling here the record is replete with the defendant's complaints and written in his written submissions to the court so the reasons were on the record and the reason this would give rise to a duty to inquiry would not he doesn't respond and he hasn't visited me and even after there was a motion for continuance that said to the judge oh everything's fine repeatedly he said he you know three weeks later he says he never response and he hasn't visited me doesn't that doesn't that give rise to do the inquiry and and bring count asking his what is going on and count asking may have said well i visited him but he wasn't available or in the may have refuted but all we have is count ascii twice refusing to comply with the court's order that he respond to d for all we know count ascii you know is out of the country for eight months he said that for all we know on this record he has done absolutely nothing with respect to this case and wouldn't a judge have the obligation to bring him and say what is going on here especially because he's already told the defendant listen if you you know you have a problem with this guy you're going pro se so your honor to answer your question directly no there would be no such requirement to bring the defense counsel in and  directly i think why when i why wouldn't i there's a total breakdown of communication here as far the only thing we have on the record is that there is wouldn't it shouldn't take the judge figure out whether that is in fact correct so it respectfully your honor with the record that we have there is no complete breakdown of communication how so how do we have the representation from counsel on march th that he met with his client the day before that they resolved all of their issues in that mr fantasy is that he wanted to continue with mr cowen asked his counsel well i don't know that did ask counsel he did it very sad in the record the transcript was not on the record your honor and i don't know why but we can take representation said i'm not going to make any representation about what went on at that hearing your honor because it's not directly relevant i'm not saying that the judge inquired of mr santos dia's as to the issues with counsel the fact is though that mr sanchez d s and this is on the record in the scheduling order i don't remember what docket number it is but the scheduling order setting  there but we have nothing to say that he was absolutely satisfied you know it would be helpful if the parties got together on that fact there is a transcript even if it's sealed you know you can give us re fact and one that ought to be available to us and your honor again with apologies to the court i did not learn of the existence of a sealed transcript until about two days ago but somebody i mean if you were sitting at the table that you knew that that event happened that i mean that strikes you're making the argument now so clear of you think it's significant that's absolutely fair it would be it would be great to have that information and i'll ask the parties to make sure you look into that you supplement the record with you know a reasonable time i would think that ought to be doable within a couple of weeks it yes or yes all right well then i'll ask you to get with mr should make sure the record gets supplement that was certainly an honor and in addition there are there is information on the record to show the  contact with mr diaz after that request was made at appendix one hundred and twenty this was a june one of the june letters that mr diaz wrote to the court he says that i haven't gotten the rest of my discovery he's not saying i haven't gotten any of my discovery so clearly he had some discovery some of that discovered he was looking for was information about the people who would testify against him that's jenks material the court knew that he wasn't entitled to jack's material until the trial started well with the time  testimony of an officer to say he's talking about the bags he was utilizing to bag up narcotics you know how did how is that a fair expert opinion and not just a law enforcement officer saying this is what i want you to believe take it even though the guy said nothing about narcotics well st i would say that the government does not contend that this was an expert opinion but your point talking about seventy two we're talking about seven a one b and we've got someone that sold the question how do you have his google get away in the courtroom in response to questions like the bags are different sizes right saying he's talking about the bags for narcotics and i think your honor if there was an objection during trial the trial judge would have been well within his discretion to exclude that testimony and if there was an error then it's not clear because there was no prejudice i think this is a lot like the jackson case it's like jackson jackson talked about say that it's code in the same way that many of the that some of the typical intercepted messages are code what i would say is that it is much like jackson in fulton where where it may fail in the helpfulness pond may not be helpful to the jury but just like in jackson the court or the jury would have had access to the text messages and calls they could have reinterpreted them for themselves there was overwhelming evidence in addition to ask the court to believe that the only direct evidence of the conspiracy was the testimony of the two and it's just not true aside from the calls and texts where mr santos the is was involved there were other calls and texts where he was mentioned by other coconspirators yeah but there is an emphasis here  a defense counsel callie that we should be we should be hard pressed to say there's not a probability that the jury was influenced to conform convict on the basis of of which you seem to be acknowledging yourself was testimony outside the bounds that this this person had had no right to be saying in the face of an ambiguous i mean the backs are different size or nothing mysterious about that i didn't say yeah what he means is the banks at their back and narcotics and based on his investigation and training and experience you know so so that's the point you need to address why why even on your plate here or is there not a problem here explain why that's not a problem because you're on to any potential prejudice was mitigated both by the overwhelming evidence in addition to that  as well as the fact that on cross examination officer guo was led to admit that most of what he was basing things like the bags being different sizes means bag of heroin the one hundred dollars was payment for a bag of heroin was based upon his interviews of jeffrey guzman so at at base this is a hearsay problem and jeffrey goes in testified at the trial and he testified exactly the same way on the same calls how do we how are we supposed to get officers to stop doing that how are we supposed to get prosecutors to stop asking those questions that stuff up if we see this in jackson and we get back here and we're dealing with the same thing how do we get the message across this is improper well st your honor i think that this is not trials are not perfect there are errors made in every trial if that's true but in the face of what we said before isn't this pretty egregious error in this pretty bad to get in the face of what we said that have to have a prosecutor put a witness on the stand and get them to say over and over again stuff that we've said you're not supposed to do so st your honor i would say that you have to look at each of these calls and messages that were interpreted individual because there are only a couple that quote that you can characterize in the way that you've been asking where he completely went outside the bounds of what i would suggest that's not correct i think we look at the totality of all these questions and he's just he's wrapping this up in a little package and putting a bow on it and there are so many of these where there's it's not coded and then he says and says come on come on the guy is that barbershop waiting for me and i was to go because this is significant because during the course of the investigation we identified the location of data which is approximately letter that of this is significant come on the guys at the bar the barbershop waiting for me you know i think he's just wrapping up and in a little package and putting a bow on it the whole the whole thing is just you know telling the jury and based on my experience and this is significant best of the you know i've interviewed in the past it based on my train experience and coded language and cooperated and defendants i've interviewed in the past i mean this is if i may your honor he testified that booed meant dog food that was how he interpreted it contemporaneously when the call came in that was what do you put in here is a search warrant affidavit because that's how dog food and food are code words for heroin geoffrey goes and told us in later interviews th don't in that instance it was mcdonald's in payment as part of the payment for bag exactly if you notice on redirect us they got corrected the record on that to try to get google to remember that even so that's just that occasion on which bagged five hundred dollars bags on one occasion for one hundred dollars right he also said that santa is the is had recruited individuals from a halfway house to test heroin to ascertain the quality before guzman put it on the street there's also calls were sent as the  calling in attempting to get more heroin to deliver and there were calls where great and those are those come up short right no not because anything that's reasonably foreseeable from his actions is it within the scope of the conspiracy if he is responsible for it's a three week period or three month period in within the period of the conspiracy yes or on whether charge not at sentencing anything that he did within the scope as i understand that what i'm trying to get out is what i'm trying to find out is what is it that you can point to that makes it reasonable to say there's five grams more there there's five grams more so if that there were a frequency can you point to something about frequency of of  involved and anything that guzman said about how much happened on that nd occasion how we did know ok there was a nd occasion how are we to know how much was involved there without just guessing you are there is st of all it's not guessing it's estimation which the case law says is permissible at this stuff the how can you say it's just a mason if nobody says anything nope there's nothing in this record nothing about except for fifteen grams on that st occasion and then we know there's another occasion what are you are you saying you're estimating because it was fifteen grams before so there is a permissible inference to be made there one way that you could read guzman's testimony is that he paid him one hundred dollars per five hundred dollars bags that was the rate which he paid him and if he bagged at least twice then it's reasonable to infer that what he was aqua guzman was testifying to was one hundred dollars each time what stop why is that reasonable why is it reasonable to say because he said one hundred dollars got five hundred  a proper inference he he did not say that i paid him one hundred dollars on the st time he said i paid him one hundred dollars per ten bricks right so one hundred dollars per ten bricks and bag for me at least twice it's reasonable to infer that he's saying he back ten bricks from me at a time as testified that she saw santas diaz bagging those drugs on two occasions so she herself me how much right that's correct she she was she didn't understand drugs she wasn't sure what it was but she she knew who it belonged to and she knew friend mention the cross examination of officer gulla when he was cross examined on the basis for his interpretations of the calls he said again and again there were based on the entirety of the investigation and that's language that multiple courts have condemned as a basis for interpret in wrong but it's not plain error because you had taped calls you had co defendants testifying you had overwhelming evidence of this case feel so bad yeah what's wrong with that or so i don't think it's overwhelming it compared to jackson and fulton jackson and fulton you have in fulton you had surveillance footage of the defendant committing the crime in jackson you had to testifying against him you had documentary evidence including drug packaging materials receipts and you had surveillance by law enforcement officers of the defendant engaging in criminal activity and so from all of that the jury could have inferred that these calls in jackson reflected drug activity but here you really don't mr diaz on a lead in over two thousand of the dirty calls he's seen only twice at christmas house both times fairly innocuous see there's no drugs or drug packaging material found in his room so you don't overtly mention drugs and you know it could be that the jury rejected the attack on the credibility of guzman and alvarez but what's key here is that might have assessed that testimony differently if it weren't for gillis testimony  show the reference to the barbershop so literally me it is the standard it's a reasonable probability test and that's from this summer but in terms of the barbershop i mean that wasn't code that was literally a barbershop across the street and understand talking about the barbershop and he said where's happen and dallas testified that they're asking for having to go to the barber shop to deliver drugs and that was the only reference to mr diaz with respect to the barber shop he was seen once walking into the barbershop or stopping into a car in the barbershop parking lot but that's it but i mean essentially here well you know like as i said the case comes down to whether or not you believe the cooperate or years and the jury might have viewed their testimony quite differently if it didn't as inadmissible testimony to bolster it and i do think your honor asked that the government needs a clear message here that this this testimony from acceptable this is just like what this court said was agreed just by a lation of lay opinion testimony in jackson and it's all over the place in this case and they made it the centerpiece of their case they emphasized it twice in summation and maybe maybe we hear the best of pretty clearly if there had been objections there's jackson makes and i agree and i