proffer statement that occurred prior to the trial talking also should have moved first to prove prevent the statement coming in from india evidence at all before the trial correctly in mind i understood our court's affirm and your client's conviction on direct appeal to basically foreclose any suggestion that these statements should not have come in in the first place am i wrong in understanding that  i believe you're correct that with respect to the direct appeal right so so you're not going to be able to stand here and argue that counsel is ineffective by not trying to get those statements excluded because we know now that that would have been a completely meritless  right it would up under the standard that was being utilized for the direct appeal all i was doing was laying the groundwork for the issue that's in this case which is that truck council should have when he had been given the opportunity so let me just frame yes this way tell me if you disagree with this i look at it like this there really were no grounds for a mistrial because these statements were properly going to be admitted however the district court was basically offering this trial and your position is that the facts council was ineffective for not taking a gift that maybe he wasn't entitled to but nonetheless was was offered is that the right way to look at this i don't think it's the right way to look at it but i understand what the court is court is saying how is my framing of it wrong then in light of the affirmative the conviction directive because i don't think that the  appeal itself that i set out in some of the briefing directly controls this issue because under red b and mezza nado this statement should have been kept your client's complete and truthfulness and so on and if there's a lie then we can use anything you say during this proffer that's what  understand this case to be about that he was saying well he misstated what heidi what happened with haiti's advertising was it wasn't he didn't i don't think he said a lie he seemed to be arguing that it was not material and therefore the court should not admit understand the proffer waiver provision applying to impeachment and that would be the other supreme court cases because they were case in chief what he said about heidi was true but the paragraph six waiver so is if you lie everything comes in so why is that if that's the case why would the mistrial get him well what's he going to get a mistrial he's still going to be stuck with a lie and he's still going to get stuck with the admissibility of proffer the same issues are there are things going to go back to the first part and then then answer your question the the basis for allowing the admission of the proffer statement which to fall one defense counsel had said something in the opening statement that the prosecution that that's that's collateral one ok but that was the first part of this case and then the second part instead of defense counsel arguing that this statement should not have come in the case in chief argued that he did not believe that the statements themselves were necessarily a lie that they were not relevant or they were there was a misunderstanding all of that's premised on the fact that and this is one of things that the trial court observed that the court was disturbed about the fact that there was no video recording there was no other type of recording and there was no actual testimony of the proper statement it all came in through an agent through an agent's report there was so there was nothing in which you could analyze whether or not that lie was based upon what mr p had actually said or whether it was based upon what it is that the agent recalled him same coupled with the additional problem the mr patro zhen made clear early on about the fact that the interpreter that was used during the proper statement spoke in armenian i understand it was russian i understand all that but what a judge wilson went through this pretty thoroughly yes i'm trying to put myself in the  situation i think we have to do and i'm trying to figure out where counsel trial counsel went wrong and you're saying as ginsburg raise concerns but other circus confronted with the case in chief situation have said we don't see a distinction and  trying to figure out what would have been the posture in this case if council had taken up judge wilson on the mistrial the state the confession would not have rebbie does not have the broad waiver in it that this language does no this is not me said you know we're firm the notion that you can waive these rights so he's still got approved or establish that there's a bare bar somehow to introducing to the statement when the is made during the for the lie clauses made during the case in chief why would they have to wait with the clause six in here why do they have to wait t ready talks about it extensively i think about the difference between being allowed to put the statement in rebuttal versus being allowed to put the statement in in the case in chief understand that but they don't say it's prohibited no but i think justice ginsburg joined by just just i know who'd dry and that have disagreed with her position right image will sylvester and the other cases are cited i took on in the briefing about how they do not have do not control given the language and which is much stronger and incorporates the language of ms and not oh so i think that the ninth circuit law at the time that this case was decided was ready as interpreted by mess and not zero and at that point in time the motion for mistrial was fully warranted and defense counsel should have made the motion at at really suggestion of employment of by the district court judge about the fact that this should happen because the district court judge was very upset about the fact that it had not deport had not been informed about rebbie or meza not oh it wasn't until the agent got on the stand and the agent talked about the full confession that the district court judge said well wait a second there's something wrong here there's something wrong about the fact that this isn't recorded there's something wrong about the fact that it isn't being presented totally familiar with what judge wilson went through and what the record is i've been trying to focus you on the legal argument to be mounted on a retrial and specially satisfied with the way things were going you know only that but he apparently made this decision in consultation with a client having a hard time finding how that can be effective assistance under those circumstances well if you a moment if you set your trial and where you're at in the course of the trial that he gained something in terms of the impeachment of the witnesses which he would be able to do in the second trial and he would not have at that point in time when he was brace faced with the issue about mistrial he would not have had no trial in which his clients can fashion to the crimes would have come in the case in chief i don't think there's a defense attorney ever the but we don't need to resolve that issue this case would have presented the issue that's right ok so we had a book i grant you he had a book to argue but he also if people had done their research would has discovered other federal circuits who had to address the issue so they did not believe th y seems by its terms to include case in chief so long as there is evidence that the defendant during the proffer misrepresented judge wilson pointed out then there's the mysterious paragraph seven that boots all of the above and said well this is not even  situation so none of this applies and he tried to puzzle through that and figure out what seems to move all of the stuff that came before but i think there's a difference between the prof and both of those cases i think give a clear impression that admitting this in the defense in the government's case in chief is the problem because it takes what we say defense counsel i don't disagree with that i really don't but to say that he had no strategic reason to do to refuse the mistrial and maybe you know we don't know what his case is not something you would do as a reasonable counsel yes and good at you but his strategy was to remove the whole confession he wanted to limit  and we said the district court properly admitted the statements patrols in may during the proffer session there was a very brief discussion that follows what was the argument defense counsel made on the direct appeal to keep to say that there that was error to admit the statement was it the it's just a defendant waving a protection so he would happen if i go rules ok so let me pose this hypothetical then you can tell me if this is not a case let's say that a district court judge is under the mistaken impression that evidence that has come in should not have come in and is basically willing to grant the defendant a mistrial and let's just say that the judge is wrong but that's his view of the evidence at the time and he's basically saying if you ask for it defendant i'll give you a mistrial and presumably at the retrial those statements are not going to come in because why would why would otherwise have granted a mistrial that was the very air that supposedly triggered the right to in this trial so in that scenario couldn't you say even if the judge ultimately would have been wrong in the law that the defense lawyer had to be an idiot not to take that gift that's why i framed it as it sounded to me like it was judge wilson was offering a gift that maybe the defendant wasn't title to but it was nonetheless offered and what possible sound strategic judgment could a defense lawyer m we're basically saying your confession has now been put before the jury in the government's case in chief i'm offering you a chance to start all over have a new trial where the confession doesn't come in at all who would be dumb enough to turn down a couple points f to testify at trial he just said i'd be inclined to consider these arguments he most likely based on the way things had gone before we could open up for the briefing at that point government counsel would have found other cases some of which had been decided in the other circuits before this case went to trial think the reference to how this is the quintessential tactical decision that's exactly it so much of having this trial this point it would be very difficult for a defense counsel to make a decision about this and it would have to necessarily be a strategic decision because they would be w would have been better coached for that the second time making the rounds you know any number of these things versus moving for a mistrial and not knowing if there would be any difference when they came back around when he returned to judge silverman's edition of the hypothetical because i'm not sure i agree with your answer let's just take my hypothetical on its own terms and what we are truly talking about is a confession that is basically going to doom the client's chances before the jury has come in the judge whether rightly or wrongly has offered to grant a mistrial and he's going to exclude the confession at the new trial you think that even if the lawyer turns to the client and says hey should we do the mistrial on the client says no i want to go forward that the client has sort of waive the right to complain later that the lawyer gave i mean it seems to me that's never the lawyers obligation to say we did it your honor we need a break because i have to talk my client out of this idiotic decision that he's about to make you couldn't just defer to the client's wishes on that you just seems absurd to me i'm talking about a confession that has come in and the judge is saying hey would you like to start all over without your client's confession coming in you think you know under any circumstances i don't care how strong the government's evidence is that that's not a good deal for the defendant  result with respect to the exclusion and i just wanted to discuss prejudice very which is that i think most much of the puns briefing it was focused on how there would be a difference in how prepared to defend it would have been testifying if he had had an opportunity just to prepare even if everything else was still going to same way in the second trial and i just wanted to point out in the record that they had discussed that trial counsel in this rock which is response the interim authority said that he had discussed with his client many  point out something i just noticed on my review in preparation for this which is which is that government counsel no you didn't try memo that whether or not there would even be litigation over the admission of the proffer statement might depend on whether either to find it was going to testify anyway which i think just for the goes to show that he was prepared to testify that there if that's the grounds for prejudice it doesn't exist and then again as i was seeing just a few minutes earlier this was a very strong case for the government  was made in the context of the holding that the trial court's crown court finding that mr petroleum was not completely truthful was not clearly erroneous ok this court has not ruled on whether mr patrol agents proffer statement should have been clearly the district court did not take those into account is much as big district court was impressed by reading him is not zero explaining that this is ninth circuit law this is very clear about the difference in case in chief and therefore then asked for whether you want to have a mistrial so the court had taken into account those out of circuit court cases and still made the offer at that point in time until i don't think so because i don't see any reference  you know he had a an arguable shot that's true the question is was it in you know incompetence you know we're an after the fact  going through all this analysis he had to make a judgment at the time and i understand but i'd be do have to look down the road and see whether it was likely to be a success maybe we can't and i appreciate it but i don't think that the trial judge had to say do you want to make a mistrial if you do i assure you that i will keep your confession out i think that would be and that was what was denied mr patro ssion the opportunity to accept a mistrial that was on a platter for him to know maybe not have and i think my read of it is not have his confession come in the second trial and that made and that made a big difference because this is not an overwhelming case count two was not decided by the jury count one and three were based on a proper statement then the count one and three don't have the evidence that they had to begin with and lastly i think with respect to the issue of whether or not it mattered whether there was conversation between the defendant in the proc ounce will this is trial council's decision with respect to whether or not to move a mistrial or one second that elaboration says clients i don't want to miss trial i like the way this trial is going or for whatever reason i want to get the trial over with i don't want to do it again you're telling me that this has less to stand up for this trial anyway is that your position no what i'm saying is the example of the judge what forgave about what has to happen has to happen which is your honor i need a break here i need to explain to my client who speaks russian is his primary language exactly what is going on here so that i can inform him of what he should do this  have sufficient time to confer with the lawyer the lawyer misrepresented my view or anything of that sort i don't do not believe so your honor was a pro se twenty to fifty five i mean it was also like the client slippin and said then record in the answers to the iraq or tories are not the elaboration i think the government's counsel is is indicating in the argument here they're just yes no answers and talking to a client about the fact that they ma test by occurs in every case but that doesn't mean it's the kind of decision that needed to be done in this particular case and the examination of the client was not as the government counsel points out kind of you know very nice