telling us very eloquently that why the council didn't understand the relevant facts and the but what do we do with the fact that the district court made a specific conclusion that is you has specs representation was not deficient are we reviewing that on a fresh record to know who like it sounds like you wish us to do or are we reviewing that under united states vs pocket or some other standard of abuse of discretion so how do we knew you just pointed out to us fresh blood gets to know but i'm i'm a little bit confused on this could you help  saw scott in the parking lot later arrested him at the taco bell that was the amount of time between those two encounters so they were i don't think the to the dia report do you know what materials ms years back received from the government before scott pleaded guilty it was only thirty one teachers that was the sole production in addition to that agents including the scotts proximity and time to the dealer the area and the suspected drug transaction she said that she did legal research on the issue and that you concluded the motions for us was unlikely to succeed she was concerned and afraid that filing a motion to suppress could result in a piling on of additional facts that would cause the district court to believe that scott was a drug dealer and not just a user she was concerned because based on her past experience in other cases officers have testified not just in the report but outside report as well and those facts are usually not helpful to her client there's also concern that the government might bring additional drug related charges down the line she would by scott that the motion to suppress was likely going to fail and that it was better to try and cooperate with the government plead guilty and scott accepted that advice maybe as act reasonably believe that reasonable suspicion would be established at a hearing and motion to suppress would be denied in this case the agents knew that heroin was being sold at this specific hotel and frequently observed transactions in public lots of the area the incident occurred after ten o'clock at night it was in a parking lot behind the hotel the heroin dealer arrived at one thousand and fifteen and scott arrived fifteen minutes later attempt thirty he met with somebody in the parking lot for a short amount of time and he was there for only fifteen minutes before leaving and mediately after the drug b or left the agents based on these observations and their experience reasonably suspected a drug transaction h dea agents would participate in an interview and give her the preview of the fact that they were going to testify to at the evidence you're hearing if she filed motions pressed there were no other witnesses to interview other than scott because scott claimed that he didn't know anybody at the conclusions of law are reached by the court so overall it's an abuse of discretion standard let that that's not over all those are two different standards agents right that's right that's right there their view that there was no yes there was no hand to hand that would support this and so what is the support for the reasonable suspicion the the fact that it's a brief meeting in the back of a hotel so they do observe a meeting up sometime they don't know exactly what's happened but it's in close proximity in time and  space to this drug dealer arriving and leaving so the officers only need a minimal level of suspicion just to stop somebody and confirm or dispel their suspicions were on whether or not a transaction has occurred and based on all the information that they know number of incorrect statements about how the th amendment where it works in her testimony she made she made a comment that could have been interpreted by the district or but apparently was not that  the fruits of a stop be justified reasonable suspicion for the stop but when you look at her testimony as a whole because she was asked questions about this multiple times by both parties and the court the district was within its destruction to find that she understood the law in terri stop she of her she was testifying about what she expected to hear at the evidentiary hearing because this in this report is beg that the officers we're going to we're going to have to  fix these ambiguities that the hearing one way or another now could have gone against or it could have gone for and she was afraid that would go against are based on her past experience but i would say that her testimony that she was wrong about the facts she was she was expecting the agents to testify a certain way based on the lack of clarity in that report and her prior experience do not dead or even make a cursory effort to look into the applicable facts when your client is telling you that the facts are different d it depends on what it depends on what there is to look into so you can do you can do no work whatsoever and still be effective you have to at least read the discovery that's given to you talk to your client and then if there are leads in that discovery or information from your client you can be expected to track down then you need to do that but in this case there was nothing to track down in the fact that even today the defense hasn't been able to tell us of anything that they tracked down that would help scott and the motion to suppress shows that there was just there was nothing for her to know roads for her to go down there's certainly no case law that indicates that an attorney can x is ineffective for failing to say there are no down but if the client says it did not happen this way this is flatly emphatically untrue this is not not i used the word leader earlier on as a lead in the dictionary sense but it's only a road to travel down it seems to me if what what i there is there's nothing for her to do with that information that anybody has been able to to establish or maybe yes she she can call her client during the motion hearing out and testify to that but if there's no evidence that would corroborate that and there's nothing for her to look into he's got could go to the scene and bring a friend and demonstrate that if you know who was obstructed where the officers were and that they couldn't have seen the hand and transaction in that we can to have she could have done that one thing which doesn't require a lot of money or research or experts maybe bring an expert to say about visibility but you know i'm not i don't know that you would need that why i mean isn't that a basic thing  someone saying i saw someone do a hand a hand or it's unclear whether they did to establish that no you could not have seen that if she knows where the officers were viewing her client from and if  that she should interview the people and figure it out and get it from the report and ask for supplemental permission that's all something she should learn were at the scene of the crime as alleged crime when when the attorney doesn't have to expect that they're going to participate in that interview if you don't dispute what i asked ms roach whether the lawyer conducted any investigation any investigation about the events of that night  or she didn't request anything beyond that is that right no and there's no indication that there was anything else to be provided there but as far as you know she did not undertake any effort to look further into the facts of this alleged enormous and t handwriting transaction that the agents believed that they observed no it as far as we know there was that she did not do anything else because she didn't feel that there was anything else to have been done and i was what they disappoint about was that her decision not to investigate further was reasonable in light of all the facts as you know at this hour i have a further question about the strategic reasons to me it's counter intuitive that i'm not going to do anything that might benefit my client because i want to put my client in the best position it would be my understanding that i would at least threaten or not threaten in a negative way but at least s est that i might bring the most into suppressed in order to negotiate with the with the prosecutor that i would say i am going to do this and that and the other and what do you can you give me if i don't do that not say i'm just going to try to be nice and maybe they'll give me something so i think you would be going to see it from a position of strength rather than a position of begging for something so i am very this idea he said oh i'm afraid that they might bring up other things if i don't leave well in fact they did bring up other things during the plea and she could have tried lugosi eight so that those wouldn't come up you know they could have structured something that us are all the actions that you describe would be reasonable but there are countless ways to provide reasonable effective representation and one of them is to if you're if you have a legitimate concern based on the strength of the case against your client actually a trial that things could get worse for your planet when you have other facts of other crimes like drugs me down on a suspected drug transaction if you have a reasonable concern that things to get worse rather than then fighting with the government and trying to push the government you can be cooperative and you and you can advise your client to to try to go for a five k which is what was done here so that there actually wasn't much cooperation i mean there wasn't like anything between you know she didn't see an acknowledgement we're going to really be good and we need you to help us out here in it was a good cop kind of version of it either it was a nothing version of it well if you talk to the client about the meeting before the meeting and they were saying that there was an expectation that he was going to cooperate and he backed off so not as a bench he was just left with having attempted to cooperate with the government and not much else  d in light of that the facts and to be a six on what you recently expected would be testified to her decision not to threaten that motion or file it was reasonable she she could have taken a different tactic but the doctor that she took was was is because we would presume that this court would not find deficient performance unless it was such a clear motion was such a clear winner that no reasonably competent attorney could could choose not to file it so if you if you find that this motion was a clear winner and that it had to have been filed then it was then you're going to find it was a clear winner for the bride to sprong as well and we acknowledge that there is no reasonable probability that scott would have pled guilty abis firearm to scales that performance wrong that he necessarily scales the prejudice from it in this case where where the only evidence against him is the gun in the government cannot proceed to trial without it and yes and under under the unique very arena and is required because of the serious thankee thankee we have your argument we appreciate both arguments today and this case dismissed it this concludes today's arguments virtually that we had as in the court and we will reconvene tomorrow afternoon to hear additional arguments for this sitting of the court thank you