while the government avoided the use of the word intent in asking questions of its drug expert it essentially asked the expert to opine about the state the mental state of the defendant in one question it asked based on calculations and your viewing of this item what is your opinion as to whether the person possessed this bag was a distributor or user that was just around about way of asking what was the intent of the person who possessed the bag the second question was no better and this related to the multiple ziploc sed what is your opinion as to whether this back was something possessed by a distributor or someone who was using it for personal use predictably the expert gave the answer that the government would expect and under this court's precedent intent doesn't have to be used  if there is a strategy of going around the precedent in this circuit and will seven o four simply to get an act to have the jury conclude that the  about this and i feel a little bit like the government seems to have forgotten what the rule was there look through the cases there's a period where there aren't any cases anymore because with the court that it's directly on point i believe in the miller case the drug expert repeatedly said i don't know anything about this defended i don't know anything about this case and there was a beginning of the testimony in mr james this case there was a question as to whether the drug ads for knew about the case and he said no but first of all the drug experts testimony was over two days in this case so i that the jury would remember something that needed to be in for size especially when you were coming up close to the wind of him permissible testimony  think is a stretch and i think that distinction is important whether it's whether it's harmless or whether it's whether it actually establish that's another distinction in this case and in the closing argument the government argued that the intent was easy and it was easy because in this case because the expert had already provided that that in the house is going to be for distribution so if you have a thousand boxes of girl scout cookies you're probably not of the them or you're distributing them you're selling them so too if you have a certain amount of drugs you're probably not using it all you're probably distributing it except that jurors may not understand how much as a user i'm out so all the experts doing is telling you this is not the typical user and i could be the person could defend by saying actually i was a user not a street but isn't that all the experts doing i would agree that there would not be a problem with that if that's all the expert was doing but the expert was not doing that that in this case the expert was not asked how many dosages do you get out of the quantity of drugs that are here even as we stand here today we don't know how many dosages would be reasonable so that so that the jury could draw their commonsense the common crack users how much they're using in particular by fire amount of money i guess so you'd have to do the math to extrapolate on that because he did the amount that this represented  well i think that's a different question the expert did testify about the common common size of purchase by a user and said it's often a ten dollars purchase but in this was several thousand dollars worth would you could say i was stockpiling for use but that would be something for the jury to think about the extra was as i understood it merely just describing what the common usage amount is in dollars and then the jury could take it from there but while i would disagree i think i maintain that the question is is improper there was no quantity life is what they call a hustle they don't have the means to purchase large scale a mile section i don't have the assets of one part of typical expert testimony is how much she uses a certain time but this is seems like a perfectly this part of the testimony certainly appropriate isn't it that there is no problem with this as a much younger and they normally don't have enough money then they go on track users don't have access to the individuals that sell the forty three greyhound chunks because you do get to this ultimate question that we're challenging and it's no longer users in general or distributors in general it's the person who had this track and what the law prohibits is an expert from testifying about the special knowledge of the defendants mental process and this person the only person accused of having this crack is the defendant so the expert provided is either something corrective by the court saying i'm only talking about what about i know the obvious or it's correct and you've got a better there's a difference but miller has the cases or the witness himself saying although i don't know anything about this case with regard to that question i understand there is that in general the expert can say i don't know anything about the case but it is important and i think this court has recognized that it's important that when you get to the improper question the jury needs to be reminded that the expert is not talking about the defendant in general and all i'm saying is the question here left no other conclusion except the expert was talking about this defendant and he was not he did not qualify it with although i do not know this defendant or one of them the whole process is of this sort interrupt what about the fact that the defendant himself of closing basically said or did say the only dispute i have is whether i possessed those drugs so on the prejudice prong there are two ways you could defend against a large amount being found in question on the counsel issue which is yes on standby counsel on the second and some circuits of so there's no such thing their understanding of the there is a right to counsel and in this case the defendant though he chose to represent himself during the colloquy giving up the right to have counsel specifically said that i need assistance with my witnesses and investigation so to the extent that the right exists the defendant can waive the right but where he does not waive it completely and retains and the court ratifies that retention which is what the court did here the court did not advise him that no you are on your own for investigation you are on your own for witnesses and throughout the proceedings repeatedly when witnesses are discussed stand by counsel is the person who answers what the court told the defendant when he waived his right to counsel was that he would have to examine witnesses make objections and argue motions you're in your position as a lot of logical peel the government mean clam how do you respond to that i understand that concern but the court can could have in this case could have said no your standby counsel you will submit your investigation request through me i will give them to the investigator and we will proceed in that matter if the court could have required the defendant to entirely waive his right to counsel the court did not require that and if it's i it's inconsistent with the right to counsel which is it would be inconsistent to punish the definit for exercising the right within the limitations set out when he twenty to fifty five context the defendant is is in a a very different situation than when he is appealing under oath i don't think there's any doubt about that but on all the other circu and the reason is that the defendant didn't have the opportunity to make that first claim in an evidentiary hearing before the district court in this case it does in the bando we said we note that when counsel changes prior to my counsel we've that that that position well the first thing i would say is that rush on itself does not hinge on whether you have new counsel or whether below a new council has failed to recognize the ineffectiveness of the prior council the court has not actually solved the problem if the rationale for the over arching russia now is not to place barriers on the defendant to raise ineffective assistance of counsel claim and there is ineffectiveness and the second attorney at the trial level also does not recognize it there is no greater burden on this court to accept it on the record here or the guy just just fall there's just one problem with that which is you are not claiming that the second trial counsel was in effect right there's no ineffectiveness claim that is all the more common occurrence in the federal cases the hay vs context where there is no right to counsel and those are the cases that the government largely cites but where you have a right and the court has recognized that right and afforded you hybrid representation this situation was unique because mr james represented himself and only was appointed new counsel at at the sentencing phase and the original appeal and to judge roberts asked you a question about whether the record is complete here so my understanding is that when the court asked the standby counsel who wrote the date on  and it was at that point that the new counsel said well we don't want to waver we're not we don't want any questions going to the council because we're not going to raise that question so that raises the question actually of whether there is a record for record here if we were to send it back down it would be a chance for the government to continue and ask counsel did you put the date down there to jerk client put the date down there it would be an opening for the government to ask the defendant did you tell your witnesses to come the next day and you tell them they didn't have to come that day so we don't actually know we don't have a record now all that may be speculation and i may be that this is all the counsel's fault in which case we would then have to ask the question whether there is a white house offer but i don't think we have a record here yet the obligation to get that witnesses there assume the obligation told the court that he was he was in the lead on doing that when he passed up a subpoena and did not know what i don't think that his answer is going to change if this was remitted for him to reinstate the question as to how that information got on the subpoena now there may be some truth out there that the government could figure out through other witnesses but in terms of the responsibility of the guess i'm totally speculating but if the defendant told the witnesses not to come because he was afraid of what they would actually say or for any other reason that would go to the prejudice not of the effect  understand present haitian law i think that the record strongly undermines any theory such as that because on the sixteenth when the witnesses were supposed to be there the defendant said and i am waiting for specifically time you james my wife we did not hear anything else about that on that date so that he didn't want her didn't it you're correct it's speculation but as this isn't even the case where there's a new council and he could have thought of the idea of ineffective assistance this is a case where there's a new console with an ineffective assistance claim already raised which the new counsel then decides obligation or wireman rasha doesn't place those types of requirements and you can withdraw really any argument i could i could withdraw an argument right right now you and i would maybe a disagreement between us on the meaning of rashad in s all his kind in that regard is twelve legally and factually flawed as a legal matter he's effectively saying that he has a constitutional right both to represent himself and at the same time have the represented from counsel and the supreme court and mccaskill and this court in washington directly rejected that proposition is you you agree trials i'm not aware of any court your honor that has drawn the distinction based on the scope of the waiver to say that that somehow creates a constitutional right to the effective assistance  the doesn't address this argument that the supreme court found in wainwright and coleman that where there is no right to representation by counsel there can be no right to effective assistance and it didn't look at the scope of the waiver in that case it didn't look at the language of the waiver all the look at what the council actually did but in both where you are right and in coleman the counsel actually affirmatively represented the heaviest at least a couple of those lying cases and i don't remember which talk about the fact that the defendant did not have the right to the type of representation that existed in those cases in other words the attorneys took over some part of the representation and the courts in i think that would be appropriate thing for the district court to say and as i started not only is the defendant's claim in this case legally flawed it's also factually flawed if you look at what the district court and the defendant actually said during the  right to counsel waiver the defendant said that talked about having problems with witnesses coming to the jail and speaking to him in private he was concerned about the fact that you have to speak with witnesses in recorded conversations on a screen and that where you can the attorney could meet with that witness and person and so when he said i don't want to have problems with my witnesses he was talking about a very narrow circumstance waiver it said you'll have the use of the investigator that has been retained in connection with this case into the defendant  believe judges don't have to up to a point in my counsel at all we know that most judges do i assume they do if mostly for the court's benefit to make sure that the proceedings run smoothly that the defendant knows the rules  said you have no right to hybrid representation as the court said to mccaskill the supreme court you have no right to choreograph special parents as my counsel there talking about these trial type appearances this defendant however had the same ability to manage the investigator that his attorney had he had the same ability to tell the investigator because it was clear that it was the investigator who served the subpoenas in the first and so he had the same ability as the trial attorney to tell the investigator who to serve what days they should show off how to remain in contact with them and thus it was the defendant's responsibility in this case to do so  that most courts do it because from their point of view it makes the process go more smoothly and it also allows the defendant and this protects the defendant's rights to withdraw his self representation at any point a key  purpose of standby counsel is if a defendant at any given time chooses that he no longer wants to represent himself stand by counsel who stand there the whole time can take over the case at that point and so it that also protects the  was not in effect of first of all he did not know who put that date on the subpoena and as your honor asked it could have been the defendant himself the defendant never saw bench warrants or brought to the court tension the fact that these witnesses were missing on the sixteenth  yes that was me and yes the defendant was in the apartment at the same time and they were his drugs that i was selling to be inform you're both us too prejudiced but also as to deficient performance and in fact even if that investigator made an error even if we absolutely know it was the investigator who wrote the seventeenth and that he made that mistake defense counsel i've worked with this investigator for twenty years i always rely on him to subpoena my witnesses for the correct date he has never before subpoenaed them for the wrong date and then his performance would not be deficient and once again relying on his investigator in this case to make sure that the witnesses arrived on the correct day so there are lots of unanswered factual questions and their own answer because the defendant represented by new counsel withdrew his ineffective assistance kind of and i do think that developing goes stands for the proposition where the defendant both has the ability to opportunity and you counsel following trial to raise an ineffective assistance of counsel cla how to counsel both witnesses and prosecutors about how to ask these questions all you have to do is use it consistent with rather than use the word intent and make clear why are we what's happened here would i would disagree with your reading of the closing argument that i don't believe that government in closing argument focused on the poorly worded questions as opposed to the experts testimony as a whole experts testimony as a whole absolutely no i don't believe the prosecutor said the prosecutor said that intent is easy you can look at the experts testimony an expert had ample testimony worded we don't expect this type of poorly worded questions to repeat themselves i am splitting hairs as to whether it was error at all because i think the question of whether it was an error at all looks to be context of the testimony and the context of the testimony was entirely made in terms of how many users common distributors the general practices of the drug trade in the district of columbia and i think that the context of the testimony as a whole makes clear that no jury would understood these two questions to all of a sudden switch focus from general practices to this specific to find it particularly where the answers immediately went after the poorly worded question  has adopted a policy and a policy that is designed to allow the finance to bring in effect assistance of counsel claims in in a sense of what is fair and a system that is designed to streamline or but you're not arguing that well i would say that the bank neither to bang on or fiddle nor rashad turn on the presence of new counsel they turn on fairness to the defendant anything what the court's suggesting simply because we have new counsel to insert a new rule into the rashad line of cases that once you have new counsel new counsel has to raise all of those ineffectiveness claims otherwise that counsel is ineffective and you've you've layered this twice you have undermined and you you have placed another barrier in front of the defendant in terms of fairness so the overarching rationales of rashad which fail and the bangle underlie which inform are frustrated so all i'm saying is under the under the overarching rationale of the shot mr james should be allowed to bring this claim here because the court the court's ultimate goal is to get to the bottom of the ineffectiveness and to not place barriers and to streamline it and it's unfortunate that mr james representing himself put these claims in and thought or was convinced or or miss west  i don't know what the circumstances of removing them or withdrawing them but just as with any litigation when something's withdrawn without prejudice and there is no in a twenty two fifty five context that's that's final you have to raise everything in the twenty to fifty five and in the bang go the defendant failed to prove prejudice after actually having a hearing so in both of those cases merits of the ineffectiveness claim were reached in this case there were no merits reached the government didn't have to brief anything they asked for that waiver and the claim was withdrawn so not only would the fairness in any fish and see if efficiency that rashad sought to like create be distorted there would be another part of any analysis of of analysis  ineffectiveness claims whenever there was new counsel or the defendant was pro se or whenever there was a claim that was asserted and withdrawn and i respectfully disagree that that there is a requirement in found anywhere mashad to bangalore finnell that you must raise whenever you are in the position to file a new trial no motion with new counsel you must raise all ineffectiveness claims  that would be a step beyond i understand because it's a policy the court can choose to a narrower point would be that once you've raised it if your console expressly withdraws  the statement of the court read by miss west actually does that i think the statement is very ambiguous this memorandum supplements insufficiency of evidence contention and does not supplement or discuss other motions objections or ineffectiveness claims against the search here so it's unclear that is this what counsel is saying is mr james reasserting them here it says it's completely confusing but which can more properly be addressed later pursuant we all know that if there are other claims out there they can be raised in a twenty to fifty five if they are not raised in this direct appeal process but once they are decided in