about and there were multiple issues that were also briefed in this th circuit appeal so in preparing what i wanted to do was actually kind of focused to what i think is the issue that this case actually turns on and is the primary issue in this case which is the concurrent conflict of interests which existed based upon mr bryan is violation of rules of professional conduct rule one seven have a question about that command if i jump in if i think that the district court understood the rule wasn't an issue with respect to the point of the current a multiple representation because it strictly limited its analysis to that two month overlapping period when mr brown or represented both mr foster and then subsequently  understanding then that the as to the former client faster that there's a continuing duty i doubt that that's how you read it absolutely ok if that's the case and it seems to me to be of a certainly a fair reading and that's how i understand your briefing but then it seems to me to be that that ors continuing duty to mr foster should have materially limited his representation of mr pitt to an attorney but how did it after all he he represented mr an attorney when mr penny tawny testified before the grand jury and took the other not in the excerpts of record but they are in the district court record those are the steps you are getting your time's ticking so i don't mean to interrupt but those are the steps you argue that he didn't the arguments he didn't make i can sum it up fully develop them together that way you think that the representation at sentencing ought to have been more aggressive and you've given some examples of that but how did those flow from how were they caused by what you argue is a continuing duty to mr foster is essentially was he was hiding basically his  relationship that he had with mr foster but not necessarily in an outright sense he didn't tell anybody about it but the only people who really knew about it were mr bryan or miss and usa thomas and there was no he didn't have that conversation with mr pena tony about hey i used to represent him not information you provided you cooperated with has resulted in the superseding indictment in new charges and so he's not fully arguing the benefit that mr pena tiny should receive for that cooperation think that is in some way caused by a conflicting duty of loyalty to the it is because he he testified on quickly that he's he's still protecting mr foster's interest but now he has a client whose interests are clearly adverse to mr foster's who has cooperated in the same case resulting in new charges and this is the centerpiece of mr pena tiny's cooperation is the information you provide as the only thing that resulted in new charges against anybody so it wasn't simply just a matter of hey you don't have this information it's the only thing that resulted in anybody getting any new charges and he didn't fully develop in his well memorandum i guess at the ethical rules to early bit confusing in the sense that i know that there's a focus on that looking at as for violations of the ethical rules but in terms of when i put on my you know hat to analyze this i mean ordinarily a petitioner claiming i see michelle under strickland deficient performance in president prejudice but then mickens describes an exception to this general were prejudices pursue him when there is an actual conflict of interest and so the court just defined an actual conflict of interest to mean precisely a conflict that affected councils performance as opposed to a mere theoretical division of oil seas which is a two step inquiry that a defendant my show a conflict of interest and the conflict actually affected counsels performance so while the ethical violations may have relevance here i don't think to me it's not the end of the story i still think we have to look at  disagree with me on that americans i don't disagree with that portion of your analysis with respect to mickens which actually comes from sullivan which actually originally comes from strickland as well strickland actually article i mean i think the actual analysis is whether there's an actual conflict not whether he violated an ethical rule that's absolutely correct ok and to show that actual conflict we have to show the adverse effect on mr brown his performance so kind of say going back to your judge kristen there just ask you mention a place where mr kreiner makes a statement where he indicated that he was continuing to represent mr foster's interest could you could you give me the cite for whatever it is you're relying upon for the strongest showing of a material adverse impact on his he he sort of came from the same stance as the district court in saying that listen i don't i didn't represent him anymore and so it just didn't it didn't matter is basically what he was trying to say and sentenced to was fourteen years but the point is that he actually did receive that dollar a departure from the court and he didn't but he could have been more especially given the fact that his counsel was asking for twenty four months and so to justify that the only way he could was to show how much this cooperation against mr foster men but he's materially limited by what he could say about that because of his ongoing duty of loyalty to mr foster so that's that's where the real problem is in this case and that's where you know i would submit that mr bryner is probably incapable of knowing himself whether he's acting in mr pena ties best interest or whether he's protecting mr foster's interests those those two things just don't go hand in hand and mr to his cooperation is defined by the de brief that he went to and he testified at more than one trial i guess what the st one was a hung jury and then the nd one was a conviction right and apparently it was intimidated at the st one or something and then they tried it again so i mean that pretty much you know how would how would that change i mean if that's what this cooperation  is i guess that i mean you can't make up things i mean he went to he went to the braves st on a sound then he went with counsel then he testified and during two trials i mean that pretty much says everything he did and i guess that's the main would presume though that the lawyer in has nothing to do with the ultimate sentence that he receives and that i disagree with respectfully because that's that's what his lawyers job is is to paint him in that light to paint the cooperation that he did in the best possible way for him to get the best possible sentence and the maximum out of downward departure it's not simply this is what he did those are the facts so now make a ruling judge it needed to be developed and he couldn't do that because of his ongoing duty to mr f please the court my name is marion purcell and i represent the united states in this matter mr bryan are clearly didn't believe that he had an on going to avoid to mr foster that affected include a duty of loyalty to a former client and there was a former client here how was that duty clearly mr bryner didn't believe a lefty file let's assume he felt he violated some ethical rules how in your view just speaking to opposing counsel about there has to be a showing of adverse effects as a result of that the reason that there couldn't have been an adverse effect here though was because mr brander didn't believe that he had the type of duty of voile to it's not that he believed in no duty of loyalty to mr forrester he testified he did my recollection is he testified flatly that he did it without further explanation but what he believed was that under rule one nine these were not the same or substantially related that there is a concurrent conflict of interest if there's a significant risk that the representation of one or more clients will be material a limited by the lawyers responsibilities to in this case a former client it's certainly a former client w actually added to that rule during the period of time this was going on it became effective on january st two thousand and fourteen i don't think that has a real effect here because the representation of mr pena twenty continued after that but the issue here is whether h position was adverse to that of mr foster but mr bryner believed and i'm not taking a position on whether he was right or wrong i'm simply saying that mr bryner believed that he is his duty of loyalty to mr foster was limited to that narrow keys that he represented mr foster on in those drugs which were seized on february th the rd and even even taking that even giving you that and i'm not sure that this matters a lot because we have a much bigger problem i think was punctual of strickland but but even at that it's hard for me to imagine a scenario a universe where the testimony that mr pena tiny gave was not adverse to mr foster because he said he testified that he was in the supplier i get fully nothing that there was nothing they could have happened based on those facts unless the court simply believed that that level of cooperation deserves that larger break and it would have been an enormous break it would certainly would have been unlikely  but the court does have a huge amount of discretion with respect to how much to give for a corporal so what would what would be mr punch pena tani's best argument of what he could have shown what more cooperation what would the court be looking at to see his cooperation i mentioned the debriefs where he was on represented then he was represented he did that and so the court that sentenced him had two trials right to look at that's right and the grand jury testimony and the grand jury terry significant cooperation and he got a very very significant reduction in his sentence from a three hundred and sixty to life down to one hundred and sixty eight months is an enormous reduction and it was probably deserve this pretty significant cooperation prevail on versus saying look how cooperative my client is and has been he's not fighting about anything he's putting himself on the mercy of the court that's a tactical decision that mr reiner apparently consciously the only basis he had that he thought he could get and what under ten was kind of a walk or something yes well he his testimony is that you know early conversation with mr where they would say clearly everyone else is testimony was that mr thomas never promised a sentence under ten years or promised to recommend a sentence under ten years obviously the the a was a can't promise a sentence under ten years that was what that was the only thing that mr pena time he was was hanging i mean obviously he was he had wishful thinking he would have liked to have had such a promise so mr here and onco in his argument focus backstory is mr pena tani to testify against mr forrester at both a grand jury and twice a trial clearly mr breiner was not acting in a belief that he needed to be so loyal to mr foster that he couldn't represent mr pena tawny zealously and the district court found that that that his representation that there was no evidence of of anything other than zealous representation of mr agree that the district court's order treated one point seven as though it requires concurrent clients i don't think so and the reason i don't think so and i may not have looked at this quite as carefully as i my but my understanding of her order is that she focuses st on the concurrent rule and points out concurrent so concurrent obviously can mean two different things here right it can mean joint representation representation of two clients at the  point you answer my question earlier that you don't think one point seven requires current come current clients is that right i think that's clear on the face of the rule thank you yes i think that what the district court was doing was saying st of all during the period of time when you represented both there was no conflict and then when she turns to the period of time after when after mr bryner learns that the two clients know each other  she doesn't make a finding as to whether there's an ethical violation she doesn't make a finding one way or the other she would she does as she says even if there were an ethical violation during that period of time there were no adverse effects and that is that what you analyze said that that and term seven if there are ethical violations it could be relevant to adverse effect but that the in analysis has to be under mc and and then you have to find adverse the fact is that and that could be relevant evidence but then there's other evidence in your your position would be that there was an adverse effect there certainly were an adverse effect the the ethical violation so what we're looking for here here is an actual conflict of interest actual conflict of interest as defined in mickens to include the adverse effects requirement it least one of the dipping is of this court says you need an actual conflict plus adverse effect so that's a terminology difference with no substantive difference here the question of whether this is the ethic whether there's an ethical violation helps us learn whether there is a conflict at all but it doesn't help answer the ultimate question of whether there's an actual conflict an adverse effect thank you thank you counsel  revolve i just want to address a few points that were just brought up so the st was miss purcell basically arguing that miles o'brien or didn't believe that he had an ongoing duty to to to foster and so he was not violating that ongoing unprotected statements and really condo and your experience that when people get consideration for their cooperation isn't testifying against in trial against someone one of the biggest factors i mean that's that that's sort of the big gun because you can go to a meeting secretly and no one ever knows who you know dropped the dime on you but you testify in open court and even at a grand jury people don't now but in open court two different trials and your three defendants sitting right there and you're sitting up in the witness stand it's pretty hard to say you didn't say what you said oh no absolutely and that's why that should have been page upon page in his in his sentencing memorandum it should have been something that he was telling judge moore we look this is what my client did a great peril to himself and what do we do forgive me for interrupting but they can with the time constraint sure what do we do about the fact that they say he was present actually made this pitch to the sentencing judge so that's that's that's couched in in his life so of course he's recognizing mr tony's cooperation that's fantastic but it's still a skewed argument he wants him to get it but he wants him to only get as much as he wants and they get and that's where mr brymer needed to come in with his follow up memorandum and say look it's worth more than that which developed that's that's a that's a position that an argument basically but if his argument would be you should get more weight and the prosecutor says you should get less than that still falls flatly backed in terms of the judge to look at what happened at the trial what happened at the debris and all of that so i don't what more you know could you do either then i mean you didn't say oh no he didn't fall and say like oh yeah given what the prosecutor said he that's the system that we have in it and i think what we need to really remember too is what is critical is that there were two different judges here so what happened with mr foster's case was not before judge moore way so it was incumbent upon mr bryan or distress what happened before judge that there's these problems you know that that's why the rule is so artfully crafted and i do think we do have to look in part to one point one because it does control a lawyers object obligations with respect to former clients and so when you have an attorney like mr bryan or who is essentially he's violating this rule he's basically gone to another client that is essentially in the same representation in arguably the same case and he just he just moved on to represent somebody else necessarily strictly talking about strickland we're really within sullivan here we're talking about concurrent representation and that violation so the only thing that needs to be shown is the adverse effect the prejudice will be presumed if the adverse effect is show and to say that you know what mr kreiner did is right or should stand i don't think there's a lawyer who would agree that who would say that it's ok to represent a client one then move on the client to who's cooperating against client one in the that i would say that there could have been a difference yes in his sentencing if he had made the arguments the way that they should have been made to the judge hallway so you think you shown but i'm just trying to get that that's correct ok thank you very much thank you card for going over we're here for to get we thank you both for your arguments today and the cases are going to be submitted for decision