introduction to this case was in reading the record and i can only describe reading the record in this case as witnessing a train wreck in very slow motion it seems like everything that could go wrong in this case did go wrong from the very beginning described as an in orthodox defense while incarcerated with inadequate discover access to a mountain of discovery it proceeds with mr moreland about a year later finally realizing he is not up to the task of handling this complex and lengthy case pro se and asking that counsel be appointed they have something to do with his friend you're no longer being april several months later that mr moreland finally throws in the towel and i'm not sure how clear it is from the record there were things going on with mr morley he developed shingles he was in care for medical reasons so there are a lot of other things going on but i know the instruction mr herbert's did nothing to prepare for this case mr moreland repeated lee went to judge ross and says he's not doing what you told me he was going to do he's not helping me he's not giving me advice you told me in my second friday hearing that's what he was going to do and in fact he did none of that he did no more than prepare not even prepared the final act as a sort of a clerical conduit for mr morse mode mr morris pro se motions which is exactly what judge ross in overtime told constitutional speedy trial claim she says yes and she still has no wait a minute no wait this is exactly why you need counsel so his attorney then tells the judge i keep prepared he files a motion that is clearly prepared by mr moreland but who can bring a motion under the speedy trial act to to continue a trial that's the judge the defendant defense counsel and the prosecutor it doesn't say that you need the defendant to consent in fact just last and continue this trial repeatedly over m bring that motion to avoid a miscarriage of justice and when we have a judge on the record saying nobody could be prepared to try this case in sixty days and then proceeds to tell the attorney that that's how much of that time that attorney has i would submit to you that is an issue and should have said you know we can go ahead and do this under the speedy trial act without your agreement and you can preserve your constitutional claim for all it's worth and we can still get a decent continuance of trial counsel asked for a continuance into september and he tactical reason you would have for not objecting to clearly improper testimony along those lines but granted i don't understand that's why we've also raises the plane air under gaston which under that case you have the same situation same kind of questioning but in that case his mental health and sure enough he gets evaluated and he's it turns out he's suffering from a delusion that affected him at the time of the criminal conduct and this is evidence that had counsel trial counsel been painting a minimal attention to this issue it's the attorney would have been investigated it would have been admissible at trial in fact it would have been reversible error for judge rothstein to have excluded this type of evidence he had been presented to her and the mental health issue alone i submit to your honor's should give this court enough pause in deciding whether mr moreland received a constitutionally adequate trial that is information that would have been incredibly incredibly valuable and would have played i go he talks about the private economic system that exists why he was doing what he was doing he thought he was involved in a charitable venture that would help orphans and kids and he in the house that he already owned when he started this and this would have gone a long way to explain of the jury why is he going on all over the world and dropping ten million dollars here and trying to buy chinese reorganisation bonds it made no sense as it was and so that's why it would have been important to the jury and after it obvious it was important to one fact finder judge iran's team took his his guideline sense that that's how we were under the guidelines from a life sentence down to twenty four years based on this show in this case that would make any difference to whether that information should have been developed and put in front of the jury you could ask trial counsel well did you realize that maybe he had some mental health issues you know well if you look at the records the government two fifty five is ok let's look let's do the investigation on mental health let's figure out as best we can how impaired he was and let's figure out the down as best we can with what that would have done all we know now is that it wasn't you know the consequence of having done it is we guess that it would make a pretty good guess maybe but we'll know a lot more once we've actually have somebody professional go in there make the evaluation i don't the court my name is andrew prima and then i represent the united states in this case this case is arises from mr moreland's conviction for participating in a massive project scheme a scheme in which he john waynes that our and others hundred sixteen month sentence that he received in this case opposing counsel has described this case as a train wreck from beginning to end and i don't think that's a fair description of the case certainly it was an unusual case in some ways but those are primarily some things that raise concerns with the government it appeared that mr moreland had his former business associate done muller filing pleadings on his behalf and pleadings that were hard to understand the government asked for another for a hearing second for a hearing engage in extensive colloquy with mr moreland and found that he was capable of representing himself she certainly advised him that this was a bad idea that she didn't recommend it she told him about all the disadvantages but he passed the standard so she was required to the waiver he actually was represented at trial to his role as counsel suggested it was a conditional waiver and so it was never a valid waiver and that doesn't make hold water either because first the initial wavery actually took place in front of ma trial and a circumstance where it's obvious that his lawyer and simply does not have time to prepare to do just that your honor we have we certainly have mr perfect statements that he would like additional time but what we have appropriate amount of time would have them that he given the time frame could not do that right i think lawyers might many lawyers would have wanted more time to prepare but what i was going to say is the second thing we have is we have the re record of the trial and the record of the trial shows that he was very effective in trial he presented the i think probably the soul theory this whole viable theory of defense the only way that one could make a defense to this case that mr moreland had a good faith belief in what he was doing he presented that consistently in his opening statement through witnesses and he did interview with a considerable number of witnesses over time and presented a number of defense witnesses which actually is relatively unusual in trials often and through his moreland was charge mr moreland's co defendants that are was convicted on all twenty five counts with which he was charged so i think if the court looked although mr fitz would have liked additional time if the court looks at the record the record establishes that he was prepared and that he did do a good job and certainly a job far above the level that would trigger any question concerns about ineffective counsel so that's the first thing we have you know i have to see that was defending under less than ideal circumstances and it sounds as though he did as good a job then as to be expected of a skilled lawyer under the adverse circumstances under which he was operating that doesn't quite answer the question  whether or not he should have given been given the amount of time that any lawyer would ask for in a case of this nature this would be a very different case had mr moreland and he asked for that time there would still be questions about whether to give that time because a defendant who has insisted on keeping a lawyer out for a year and then ask for the last moments raises some questions but in this case mr moreland the reason he didn't get more time is mr moreland didn't want the trial continued he asked for more time just resting actually continued a couple weeks over another couple months you're not arguing that he would watch the speedy trial claim right certainly there were he would not have lost his right in that case if he had because he would have done exactly the same thing right so and so you're saying he has a right to a speedy trial he would not have lost the right not a viable claim because i guess let me go back to the one last point he initially waived his right to counsel at the first hearing there was nothing conditional about that waiver he did it in front of judge benton so the second hearing in front of he's already waived the claim and sometimes he's already waived the right to be represented and chosen to represent himself so in some sense that's really just a confirmation but the second thing is as you read the transcript there is nothing in there that promises them a level of assistance that makes his waiver conditional on a certain level of assistance from counsel in fact the first approximately fifteen pages of the hearing every detail colloquy about whether or not to waive at the end of that judge rothstein asked him squarely do you choose to represent yourself and he says yes i do and then the conversation is very brief after that in which he says now you're giving me this appoint standby counsel what can i ask you to do but it's clearly a follow up and looking for help rather than any conditioning the second thing is the mental health defense in this case the government in this case did address that on the merits and we believe that the record in this case is sufficient for the court to reject that claim on the merits it's certain i won't go into that unless the court would like me to but it's certainly in conduct a mental health evaluation in order to address the evaluation that the court found significant at the first sentence and we pile the pleadings saying why we thought we should be allowed to do that and one of the reasons was that ms hastings had been found whether it there was a strong suggestion in a federal case in alaska that she had fabricated results and perhaps testimony and we wanted to see the raw test data for her test we obviously have considerable questions about it but that that the court does not reject the claim on the merits these are all things that need to be developed in the record to understand did mr moreland investigate edge of mr herbert's investigate to investigate adequately did he have a good reason for his choice and is there anything to evaluation things which both of examining her evaluation and obtaining another evaluation will allow a court at some point in the future to look at and so on that we would argue that there is the record either the court either being rejected on the merits  should say it's premature and allow it to be considered later in terms of preparation ever really dealt i think with discuss that in terms of the consequences of fret about the record here the record of the trial shows that bates did present effective defense is far above the constitutional standard presented a very good defense one that was was successful on a number of the counts and so on that there's also not a basis for it that again would be something that would be mr moreland's testimony after he had testified for two days and direct examination she asked his lawyer how much longer he wanted the lawyer estimated half a day she gave exactly that amount of time he testified her further half a day on redirect so he had plenty of time and i think the other significant thing is despite the claims that there was a limitation we still have no evidence or no reason to believe there's anything that he was restricted from testified about his good faith these are very general claims there are things he disc he had already testified concerning extensively he testified more about those there is no one could always say i would have talked more about good faith mr moreland had five years now to develop to bring forward some fact that he was precluded from presenting himself one i think judge rusting didn't the exercise and the restriction because she gave exactly what she was asked to even if one were to say there was a restriction nothing examination about whether two witnesses had told the truth specifically questions when those two witnesses said something were they lying and mr moreland's relying on a case called gaston primarily to say that's improper questioning say two things one guessed and doesn't really apply directly in this case guessed and had to do with a situation in which witnesses were forced to say whether he government witnesses police officers or agents were lying so basically had to do with forcing witnesses to assess the credibility of law enforcement officers who are critically important when this is these two witnesses were peripheral fact even if one would wish it was phrased a different way it's a natural response to that question it's an answer you don't expect to get mr or mr moreland has basically said the witness is lying before he's even asked the question so that explains the testimony with question asked of him that basically mr moreland had testified in a way that made it clear that his testimony was directly at odds with mr alvarez his testimony and there's one question asked so are you testifying mr al is lying it's one question in a seven week trial of a peripheral witness and so first i would say that it's not covered by gaston because it's not a central person it's not a police officer all that's got all those things but argument that the government reinforced the error in closing argument and that is not the case there's no reference in the closing argument to saying mr moreland testified that so and so was lying obviously mr m testimony is put up against other people's testimony but it's not reinforced if this claim she's off the fact that that question shouldn't have been asked that error is not being reinforced in closing argument rather the closing argument is argument that is allowed in is proper u at all of the factors and thirty five fifty three did that clearly i think is has fulfilled what is its obligation is given a lawful sentence and it is an appropriate sentence and i think the court can resolve this case without waiting for th to be decided but i would like to make one point on the i guess the last issue which is the restitution issue the quote at the time that mr moreland originally was sentence the court did not order restitution we basically this was a massive investigation with relatively uncooperative witnesses in most cases and the question of figuring out what assets could be recovered and how those would be given out just to victims was incredibly difficult now we did recover approximately twenty five million dollars in this case roughly a third of the money and so people really did get back in tech some didn't claim so they ga they got back nearly half of the money that they invested and lost compared with that the amount of restitution that any defendant never was going to be able to pay was incredibly loud incredibly small if mr moreland were to pay a thousand dollars  restitution that's fifty cents a victim and so the decision was made to rely on the receiver determining the value of claims on the real value claims and to use that as the basis for restitution or whatever point that became available if it became available in time i think the scope of the work is shown by the fact that the final restitution list is i think sixty nine pages long in fairly small type the receiver did not manage to do that within the ninety  tried and i think it would've been a hard question whether it was appropriate because the statute doesn't the ninety day limit but there are ways around and one of the question you didn't address the mental health and the delusional i didn't address the substance of that just because the court is set forth in that the d s m apparently is you have a person and they run into another person and they develop a dependent relationship on that other person and that other person has a delusion and part of their dependency is they develop the same to lucian and so the argument in this case for mr moreland was zadar had a good faith belief that there is this world of high yield investment in them and when moreland met him he became co opted int same delusion we laid out in our brief why that makes no sense in this case because moreland one was peddling a high yield projects the before he really had any significant relationship with this that with mysteries that are two it doesn't explain a lot of the conduct in this stage it doesn't matter how much mr moreland believes that there is this world when mr moreland stands up on stage and says i'm i you know i've made so much money i'm a millionaire i'm retired when he listens to people say dexia made forty million dollars last year and he knows it's not true that's not a delusion there's no had to deal with the same information about sixty days and go to trial if there was a full year between mr on the end of this trial and his first sentencing and there's no reason why the government couldn't put something in front of the court put some motion in front of the ution order answered and so there was something wrong with it and they said go ahead and fix that and there's not a single case that i can find except the far where they did it under supervised release guys where the court waits however  government waits however long they want to and then tries to resuscitate the issue and it's not just because there are ways around it but this is not one way around it they should have done it then they should have preserved the issue and they didn't the financial information and that he prepared his own exhibits there were over seventy five government witnesses there isn't he maybe he interviewed him while the trial was going on but there is no way somebody could have prepared that information and gone through half a million pages  discovery to get ready for a trial in that amount of time he says that he presented the best defense team at a good faith defense one of the best defense would have been good faith coupled with this mental health evidence it wasn't in there how do you have more time you know it  could have been that he would have looked into this he defends the government's questioning of the what he calls peripheral witnesses they were peripheral maybe they weren't mentioned by name in the government's closing but they sure honed in on that theme over and over and cited t counsel full two months before the first june tenth trial date this is not who somebody who i came in on the eve of trial and is trying to sort of manipulate the process and work the process but even if that were true he still doesn't have to pay by nothing more and nothing less this is evidence that should have been investigated any trial counsel should have investigated and would have part put it in front of the judge it should have been in front of mr moreland stretch and it will be at the next trial and mr friedman