counsel for mr sylvia's st trial chose a strategy at trial and made promises for that trial strategy that he just could not meet and there was no likelihood he would be able to meet the promises he made to the gerry essentially promised two things the jury st that he would prove that the key witness was a liar and secondly he promised to jerry that mr syria had committed no crime because he assigned interests in shares of stock rather than selling stock trial counsel should have known that he had no evidence to impeach the key witness because he had done the prosecution that assigning interests and shares of stock was illegal he did not consult an expert did not call an expert in did not examine any witnesses to suggest that his theory and promise to the jury that this was a proper conduct had any support whatsoever in fact and law at the time of trial it should have been absolutely clear the trial counsel that his strategies had no chance of success the witness without any documents to impeach him but without any documents to contradict him without any evidence to show that he had lied if you read the cross examination but no documents he presented to that witness to contradict anything that  to his trial attorney and the predecessor counsel that it documents existed to show that he had an actual sufficient agreement that was valid he urged his counsel to obtain records from the witness including his e mails required an attorney to care enough to take action and ask the deficient performance prong but there's a prejudice prone to this only as so how are you going to be able to show prejudice if you don't have a witness who can credibly testify that the documents that were detained do exist and you don't have the documents is incumbent upon a trial attorney to ferret out and find the evidence that that's why the performance would be deficient yes but in the absence of any indication of better the person performance prejudiced you not in the record that is not that is not however there are hundreds of e mails between witnesses and some of them clearly have evidence that was would have been helpful for the defendant during the trial by recognize that the basis really a reasonable basis to pursue a defense claim and therefore the defendant doesn't have the obligation to pursue it in this case the trial attorney chose the strategy and the trial attorney knows that when you confront the witness the going t likely maintain whatever their version is and if you don't have some type of witness or evidence to contradict them it's on the same birthdate strategy so back to the question was this an on reason the spat he thought if it was done effectively done with no evidence continually his client to meet with him to talk to him to interview witnesses and he was aboard he was with her when he faced trial and tried to defend himself he had the choice rather or not he was going to let the evidence remain untested primary witnesses that he says should have been called could actually have to testify as he claims they could have now to find it has potential to cross over the adverse credibility determination made by the district court referring to and the one straight line in his brief and effectively arguing in his reply brief that the district court did not in fact find that a valid subscription agreement does not exist but what the district did find is that it was unwilling to find that a subscription agreement did exist if not supported by prejudice if there was a reference to e mails of the e mails make references to the existence of the document i was at my understanding is that the defendant's argument is that certain e mails specifically e mails belonging to time or would have reference to this is that an expert would have testified that pledging stock as collateral for a room that is not of the sale of the security but no expert could have testified to that because that's simply not the summary of the various points that he did score against tara finally and perhaps most underappreciated any success to successfully prevented tom or excuse me presented sylvia from being impeached using the estrace the government sites in the brief had an argument that it is a reasonable strategy not to get emails from the lead witness that cry and says we'll have documents that defeat his entire argument and the reason why it's justified not to get those emails is because that person might commit fraud and might not give you the proper e mails if that was the idea of a geisha and imagine any civil litigation where you get production documents from the adversary you would never do it because you'd be afraid there would be something that you can articulate that isn't there it's an absurd position to take for somebody who didn't do the job monday morning quarterbacking this crime and urged that the initial attorney from the data very minimal way for the day to trial through hundreds of e mails to to talk to these witnesses and get these documents and no effort was made none other than green hills to a half years later none of that's on monday morning quarterback medicine insisting client who expresses an effort to get documents that an attorney just doesn't have the time of the kid to do