learned on the nd day of the hearing held by the court to address the issue at that point his attorney should have withdrawn or indeed the government should have moved to disqualify him contention that this is an on the way football conduct as a and united states against wheat such that there was no possibility of a waiver or is the contention that there was not  circumstances in which a conflict is considered one way people ordinarily a defendant has a right to proceed with counsel of his or her choice but in this particular case and that codefendant particularly here because mr hicks the codefendant did not waive conflict so even though a waiver was taken from mr arrington and the nd part of your argument your honor is that that wa who could stay on the case well he argued that there was no way he could stay on the case in the interest of mr hicks and argue that mr hicks was not way emphasized mr hicks was not waiving which is a somewhat different thing than arguing all the way through he was never replaced until the appeal that's correct ok that's correct and in our our position was soon as he learned that mr hicks was going to take the stand  had an obligation to yield and one wave to yield to counsel who could advise mr arrington properly on ok how do you use the testimony that mr hicks might offer can you never exact entirely sure that he's going to testify if he testifies you're never totally sure what he's going to say but you could make certain very reasonable assumptions and those would be one he's going to deny the existence  the enterprise charge from the indictment he's likely going to deny that there was any overall plan for the shooting of quincy events those are things you could absolutely expect him to help mr errington so to immediately suggest a severance to solve your own problem in this case mr low temp you know i'd like a severance i think you know it helps me as well it's really of what mr hicks would actually say rather than having to respond on the spot to you know whether he took the position you outlined or tried to just get himself out of the side i'm just suggesting that raising the question of would a severance with him being tried st not be the best of all worlds it's certainly better than what happened and i would say is he would help but either a severance would he's going nd or let's say the judge trial judge was willing to let x go so i could then no severance at all it takes a anything that was incriminating to arrington by and large he helped arrington we have laid out the testimony as to what mr hicks said i can point to five things that i counted that i think i have those  it was for me you need not go over those but what i want to ask is is it so clear that since there was no incriminating evidence from from from hicks towards harrington is it still clear that harrington's lawyer couldn't examine him to bring out the favorable things about hicks would that breach the attorney client privilege he's not questioning his credibility he simply getting the it's called the tour information from him but he's had to waive for that to happen and it's refused to waive his  waiver an attorney may not cross examine a former client even if it doesn't hurt the client in any way not an absolute rule but here the in this case you had an attorney examining a former client not about some real estate closing but about the actual facts that are alleged in the indictment no words his representation related to racketeering at thirty six  indictment before the jury was at the time that this conference is being held pretrial when all this is going on no one knows ex ante or at least neither the judge nor the prosecutor or this will attempt to you know have any idea what it would say you said it could be some speculation he might say something useful we might say something harmful in the mixed in with that or something that might be a different mix so it's harder for her judgment as to whether issue take issue with the cross yes specifically because you know you have to waive knowingly voluntarily and intelligently and there was no discussion of the issue of either the severance or of what to do with mr hicks his lawyer got up and insisted very strongly that he would testify any competent lawyer would know that could be a boon and in fact i described takes his testimony in the brief and it was very helpful is there anything in the record that indicates that mr arrington ever found out or even knew that this was tempe i had suggested the severance and that that was why the to testified but if you actually look at what hicks is only attorney said before september th two thousand and seventeen which was jury selection on this is what he said quote who knows what happens  not some no brainer a case where this guy is never going to take the stand but that perhaps as a surprise to some that this was a case where this was being strongly considered doesn't that create the conditions for what actually happened of course here hearing in a discussion of whether that creates a conflict of interest and what needs to happen it goes to what the the conflict may be whether it's actual what a potential conflict may arise and what the remedy ought to be when you consider it from what the district court had to actually deal with without as your honor brought up we we says that an appellate court gives substantial latitude to a district court because the district court has to make these conflict decisions without the wisdom of hindsight so let's look at this with the record frozen as of september th two thousand seven hundred and five days are not suggesting that there should not have been a chorus you hearing no that's that's not what i'm suggesting and some of the i thought that  district court's perspective not only was hicks equivocal to the point of he might as well say nothing about what he was going to testify he actually rejected the district court's offer of a severance which would help him because it would have alleviated him from having to judge is just a delay tactic it but secondly with respect to whether are your issues are you suggesting that as a consequence we don't have to get into any of this because they didn't need to be  that if there are now there is of course we are hearing that the judge did not need to canvass the possibility that mr hicks would testify possibly had her silly  as a as a witness if we look at what hicks was telegraphing the way that he filed this motion he said i'm afraid to testify because we'll tempe was going to cross me but if you are a defense attorney why would you attack a witness you only attack a witness who says something inculpatory about your client not some body who says something exculpatory so the very fact the hicks was saying i'm afraid of getting cross examined by my co defense attorney telegraphed not that he was going to testify favorably about but he was going to pin something on that would have merited an attack which is the usual case and occurs you hear that really is what you usually concerned about this is a reverse situation from what i've seen where they do leave the now and waving  client is a former client is actually going to give it's called bittorrent testimony it's just i mean i it's just not what we generally look for i'm going with you this is helpful to you right so the circumstance i agree is  a little unusual i could find no one where a court has come out differently in terms of reversing what the district court is done and i think part of it is because of the specter of what the district or even if that meant giving up his ability to for cross examine and then hicks was brought on and hicks decided he or claimed that he didn't want to waive and so the decision was made by business records  know because harrington doesn't have a right to a joint trial so if we look at what the conflict would have been the one we're serving it's not an actual conflict because that at that time pretrial there was no  if there was no issue of this testimony if you go nd you get the benefit of seeing the government's case you get the benefit of the parts of what prosecutors in my experience never want to see which is  the prosecution witnesses have to testify twice leading to twice as many possible impeachment issues if there are inconsistency is in the testimony and it is just curious to me when  when you look at what's happening after arrington is out of the room and the situation changes somewhat doesn't it now we're no longer talking about what's going to happen at a joint  trial and you say well this is a great dilemma for the district judge this big judge didn't seem to have a lot of trouble solving the dilemma he saw the solution sever cases and then maybe we don't have a problem but it did seem to me it was rather obvious that mr low temp iau was agonizing about what was best for him and said here's what will solve my problem and i'm so we're going to have it done and i'm willing to go st and it's not obvious to me saying let's do the severance let's go st because arrington wants a speedy trial and wants to go st that's in his interest to do that as opposed to i want to secular and so that i can be continue the representation and i want so much that i'm willing to do to do this so that we don't have big fight over who goes st missile tempi i've been on the case two years at the time and i think it's there is actually enormous risk to pushing prior state jury so he doesn't testify nd trial there's no telling whether he would testify at the st trial by himself and secondly if pushed to either getting convicted with a life sentence hanging over him or doing the same thing where the he flips client's interest and isn't that precisely the situation in which you want and i'm conflicted lawyer making that giving it that advice and making that decision now and again  i'm surprised by the argument that this is a wave a ball of conflict i wasn't sure that something that the and it was saying before but at least as to what needs to be explored and what advice needs to be given  troubled by the fact that this whole question of is the severance really in your interest and is that something about which there may be conflicting views that may be affected by the judgement may be affected by lawyers conflict is something that i would certainly with the benefit of hindsight i think should have been explored maybe a little harder to figure out and with with the understanding of the district judge is facing this kind of coming up all  hearing from the independent tourney happened before this discussion outside arrington's presence that surfaced severance is likely to wade the way to go here and i'm wrong about that say if we look at it from this perspective of a district court of all the different positions hicks was taking this is recognized as issue i think correctly recognizes it as just a delay tactic and having accused of a structural error of depriving errington of his right to counsel of choice and having an automatic redo from that point verses you know the government accuse enough of manufacturing conflicts to knock defense attorneys off cases which we saw fit not to do that here the district court would simply have to be confronted with the such same situation we are now it's either you're dealing with a structural error with an automatic redo or at least you're dealing with ineffective assistance of counsel where you're looking for prejudice and harmless error analysis or for that i think the district court made the correct decision here thank  but our biggest thing is my client wants to testify that was brought up the st day he later said that you change during the course of trial but the issue is on the table  with no rational defendant would knowingly and intelligently have desired mistral attempt it was representation in other words the argument is it's one way bill because as it is on those pages no rational defendant