courthouse he was tried for banning creating an unfair rest that's going to place in the front of the building correct at the entrance correct it right yes and didn't the judge to take steps to mitigate any you know she had the jury can on the side side entrances and up through the to the jury room the jury did that's correct that the jury was not permitted to enter through the front of the courthouse they went to the side but the but the argument is that having the trial in the courthouse was there any hint that they didn't comply with her directives there's nothing in the record to that that your concern is just that it the trial took place right there in the same building yes that were questioned you know before the trial took place and i it's i think it's a kind of a prejudice that is difficult for or near impossible for a juror to be able to predict how they would feel later and i think in some cases we talk about actual prejudice you look at the voir dire transcript and you determine whether the jurors were actually prejudiced but it in a case like this is more akin to a presume prejudice where atmosphere of a usually of a pretrial publicity case become full i mean this is obviously not the first case in the history of the united states that involves difficult issues like that the only case you cited really that has come anywhere close from your perspective is that two thousand and two missouri case which is easily distinguishable if this is that big of a problem when it's three years later people go through the side of the jurors all say that's not a problem no one was killed nobody was hurt no jurors were intimidated in that situation why is this a problem i don't understand how this rises to a level so heinous that the can't get a fair trial in this place well the fact that there is not a lot of cases point is probably due to the unusual circumstances is not a lot of real serious violent crimes that occur in courthouses especially after a metal detectors but but we have a situation where if you put timothy mcveigh on one side where w to court granted a change of venue and you put nettles the seventh circuit case on the other side where no bombing actually went off this case you know is somewhere in the middle and the missouri supreme court case i think this one is relatively close to there and it's not aren't you really getting close to saying that it's a person a presumed where you have the circumstances such as this you have an explosion that's in the courthouse and you can't mitigated in any respect i think that's i think that's essentially my argument is where and when there is and i think you have to look at all the circumstances of the offense in the crime but in a case like this where it wasn't just a bomb went off in the front of the courthouse it was the bomb that was three pipe bombs together they had one hundred ten galvanized nails that the prosecution emphasize by playing a video to start off their opening statement they referred to it in their closing they had expert agent testimony about that the damage to the courthouse it damaged the  blast resistant windows it actually projectile went through the x ray machine in the optical turnstiles and in those circumstances they the jury cannot really  think determine whether or not they'll be impacted and i think that the post doesn't the proximity or lack of proximity of the bombing make a difference here this was three years approximately after the event was  out yes and i think that would be a much stronger factor for the government and a publicist a case because i think publicity you forget about the you know the what you heard on t v three years ago but this type of  prejudice claim i think is different i think it doesn't make as much of a difference if it occurred a year later others like ten years later or twenty well it may have some impact as later some of the jurors don't remember the defense and there was testimony about the damage to the courthouse i don't think that was an important factor that you know the essence of the claim is what they district judge s mcveigh is that prejudice is not just limited to bias or discriminatory attitude includes the impairment of the deliberative process reductive reasoning and evan ensure the facts and is more powerful when it generates a strong emotional response moving to make my second claim the second claim is that essentially the district court erred in denying love's request for new counsel i want to focus on the first request which was on september first two thousand and ten he submitted a two page pro se request with twelve reasons why there was a irreconcilable conflict  concluded that he lost faith with his attorney the court looks at three factors and did and looking at this point in salute just to make sure i understand what happened the district judge then set the hearing that motion i think about the same time he he submitted his motion he sent a letter to your colleague judge mchugh and at the ninth circuit court of appeals and she said she but she strikes and she said this is improper we have a moat there she just strikes it so there's a motion it's set for hearing correct right and then what happens and then and then at the time that the next thing that happens is that the district judge denies the motion in a one page order without prejudice to renewal vacates the hearing after the trial after all a second request for a new  y after a motion for a new we learn the in her order that the counsel contact the chambers correct and that everything is ok right that i talk with my client and that we motion attorney for used for further court just except the representation of the defense counsel when the defense counsel's interminably he after he found that motion when was the next time th was a court hearing so he f months later what they were there was one before trial and there was this colloquy with the defendant present and his attorney voice and the defendant made clear that he he was prepared to proceed with the attorney as a matter of fact i think the judge really got very specific about it and said that all right you're not asking for a new attorney at this time is that correct i just had a couple of issues with him that i can take care of it later and he said over and over i want to proceed go ahead and then the trial went forward and that was nine months afterwards and  so there's clear that there's some i'm going problems or issues and but i've now as has the court is a court needed that once they actually talk to him mr love says  still speak to the issues with my attorney even if you know i'm at the counsel judge mccune did something really unusual i think in the sense that when there was a motion for a new trial after that was all done  done to thoroughly ventilate this issue well their hearing was was mostly this second motion for new counsel admittedly but unless she went through and examined exactly what had happened pretrial during the trial post trial and concluded that there was no basis for it what more could she have done well other than come to a different answer i'm not sure it was what's more she could have done but at the at the first at hearing after the trial that after mr love requested a evidentiary hearing he specifically talked about bringing witnesses to show that is most is second motion for new furniture for new counsel was timely and he said he was going to bring in the c e o that could verify was mailed out about may eleventh and show up in the court record whether or not they were bonafide we don't have to get into because she looked at that did she not she she did and again that was mostly tailored to the second most intimate this is second motion for new counsel my argument is on the first washing for a new trial was it not well it was a motion for a new trial and then that when new the motion for a new console and argue that it was filed before you breakfast your point on the first version is that is that ideally she would have conducted a hearing or would have confirmed with him in some way that that he agreed with his counsel's representation having filed yes especially when then we may be a little more prudent but you know things this particular saying to find that that's always the case that there's a financial interest seems to me that raising that issue if you're saying at the same time it doesn't apply to mr boyce is really just it's not a good argument i'm not saying it representation of the attorney without hearing from the defense and the court didn't on may eleventh the court what the court did before trial just before trial asks the defendant if you wish to proceed the only thing he said was well take it up with him and then she went on to say that's the way we resolve these things so you'll have the opportunity to do that and he never did they went through the entire trial and at no time did he complain and say i may need another attorney yes and that's one that really overcome all of that that proceeded and particularly if there was some error with the process of getting that original pro se motion technically i have to look at each procedure each each motion for a new counsel separate way that the that that was in the context of when in fact just before trial he she's asked explicitly over and over and i mean i looked at that record and i thought wow this is rather substantial but the judge did to make sure that there was no problem with counsel and he said over and over no not well let's proceed your honor and if there's something we'll take it up later and she didn't even leave it there she then said ok you'll have that opportunity you never took the opportunity you know what he said was i do have issues with my attorney but i would like to try to talk and resolve them with him at that point and then and he claims that the very next day he sent a motion for a new counsel to the court and  of the constitution venue is presumed in the state in the district where the offense occurred the supreme court said in the stilling decision six years ago that a finding to presume prejudice is supposed to be for the severe or the rare case we would submit on the facts of this case that the judge mccune properly exercised her discretion and when she issued i believe a ten page order going through every one of the arguments that the defense raised that at the outset that she had a very informed exercise of discretion now with respect to defect that this offense occurred at the courthouse i think the panel's already pointed out a few salient facts on bomb didn't go off in a courtroom it was at the entrance to the courthouse and what a judge make you do she specifically came up with a prophylactic measure we're going to direct you jurors and all jurors are presumed to fall their instructions are going to take entrance that way will mitigate any possible concern but more importantly as i pointed out my briefing she vetted the during voir dire the panel specifically said we're having this trial in the same place where the crime allegedly took place does anybody have a problem with that i see no hands and even after other people from that original panel were stricken for other reasons when the replacements came up she went through that same process now aside from that time i believe there is a supreme court case that we cite in our brief the name escapes me but they made a very pertinent point as well that says time tends to cure a lot of the problems from prison prejudice this bombing happened in may of two thousand and eight the trial was readers later i mean that and i i'm a judgment that went over that topic with my point we would say that's a very important circumstance here and again especially on differential busa discretion review in addition the fact that nobody was killed or injured the fact that this bombing happened at one forty in the morning was a saturday night but it happened technically early on a sunday morning by definition the courthouse isn't open there's no jurors there you might have a different scenario here if if there are concerns here if it happened at noon on you know we had lots of activity at the courthouse correct injured a much different scenario completely but what about the argument that's made by defense counsel that well look all of the judges in the district recuse themselves impropriety or bias all of the judges are employees of that courthouse i think when the when the court does that that's a different thing than we're talking about presume prejudice which again is a standard that's very hard to satisfy and i believe even judge mckeown his argument was very low and she said that she didn't see how that affected the healthiness because you know judges are held it's a different standard as you all know if there's even the least appearance they don't want any sense of bias so you know this is an attack on the court house where i come to work every day and therefore i think for that reason that that's a separate a separate issue but here the fact that you know during board to your i mean i believe even the seventh circuit in the nettles case said if there are these kinds of emotional concerns that's what directed toward the year is meant for in here when you have the court conscientiously going through that and i think also pointed out of interest there was at least or there were at least twenty pages of defense counsel more dear there wasn't  a single question or is single challenge for cause to anybody on the grounds of the supposed emotional reaction and the last thing i guess i would say with respect to that point or that first issue on appeal i believe the district court made this comment to i mean it's some point if you accept the defense theory of prejudice that would be present in any court house because by definition an attack you know a bomb when a bomb is placed in the front of a courthouse wherever you hold that trial in the united states you're going to have a risk of the jurors saying well it could have been me but as we said on the facts of this case when the bomb goes off at one forty in the morning on a sunday and there's no ostensible attack on judges or on a jury then you know  evidence of any of this supposed emotional response that the defense has had on the first claim so i'll proceed to second issue the motion for new trial i mean the first one of these that i've litigated i don't think you c find a more thorough record well i mean you have to look at them there was the first motion in september correct ok now the way the court disposed of that motion of a little odd not usually the way it's done  you know he's not he's not conning me every day right it's not doing what he's not filing the motions that i want him to file what i think here usually when that happens you know you ha you have an exchange with the defendant and you try to find out if there really is a true conflict and that that didn't happen here granted and i know that the case law of the circuit says that hearings used to preferred way but i believe it's either the smith case the mclennan case the standard is that is long as there under the circumstances adequate information or sufficient basis to rule on the motion and this court is also very deferential obviously district courts a very busy  each case turns on its own factors as we point out for a court to rely on in defense counsel still an officer of the court and when a defense counsel in this case contacts chambers i mean when you look at that original september motion it's twelve assertions if you take all of them at face value you would have to conclude that mr boies did absolutely nothing for the case that wasn't true when he contacts the clerk of the court and represents as an officer of the court i spoke with my client had two main issues one was receipt of electronic discovery because courtney's i think there was twenty thousand plus pages a lot of forensics he was he wasn't getting the disks of first that he was having trouble using the hardware at the m c c but he said mr boyce represented that he had fixed that now granted judge pies yes if if there had been a hearing that would have been better but i think under the law of the circuit it when it's abuse of discretion its totality circumstances on those circumstances i can't i don't think it can be said that the district court committed reversible error but more importantly and i think even judge mccune by the time this is all done in her january two thousand and twelve order she's done a lot of this retrospectively but a couple points first of all as judge silver is quoted i believe we've got it on page twenty three of the supplemental excerpts of record that made ten twenty eleven call please it is extremely thorough and it's not just oh are you having kong with your attorney for purposes of boies was present in the only thing that will one of the the factual claim to my point made that i disagree with respectfully is that that was that hearing was mostly about the second motion mr boies was there to actually provide testimony as to what happened with respect to that first motion in september twenty seventh he was there in open court he told judge mccune i contacted the the clerk i've had a lot of communication so that was in effect a hearing on the september even if the and what judge mchugh did it was so thorough i mean she she ruled at least with respect to that second machine three separate grounds for why it should be denied and even aside from the moodiness aside from the waiver i would say the most important one that i would emphasize here today is that she actually reached it on the merits and it when it again when all is said and done if you look at this that the trial had already been continued twice she said and i believe judge smith was saying this too i'm going to assume that this was prejudiced that where you have the two cooperate witnesses who are still pending sentencing to delay any longer would have prejudiced them as well it be even aside from the timeliness she said there is a complete breakdown in communication and this is probably the biggest point about all of these issues with new counsel is i read the case law you see these words these qualifiers there has to be a complete break a total lad cases like the moon where the defense counsel said yeah he just stopped talking to me a few months ago that's the kind of extreme situation that merits new counsel this situation was anything but even though obviously the defense was dissatisfied what was happening in the case between september when the first motion was made which judge when the district judge took it off calendar or denied it and may when there was the hearing to preach what was taking place that there are there any court then i mean that the trial people were gearing up for it you have a dell bear hearing on may sixteenth that's exactly one week before the trial so i think those kind of motions were going on but but he does want to what are we to make of the  defendant wanted his former client gloria i guess to testify about it and he did and that was one of the reasons you said he needed to counsel he didn't make any proffer as to exactly what would be said what are we to make of those do we take those two communications into account do we treat them as being basically because they weren't there was no foundation laid for them what about how do we treat those if i understand you correctly you want to you're referring read it i think the sole purpose for that witness would have been to prove that that motion was timely filed on the may eleventh date and so what i would say is even if you assume that the best situation for the defense fell for all practical purposes a judgment cuban reached a marriage treated these two communications that we just referred to one there but created the two as if they had in fact been properly filed everything was wonderful and worked out you know absolutely to two different felonies and what was the case law for that as opposed to the fact that was the case say for example the firearms focuses on the actual as the unit the figure out all we're saying is that when it was never raised below and if the standards point here but but still i mean what is it minor that's i guess the question that i have how  and i'm going to quote here is so clear cut so obvious a competent district judge should be able to avoid it without benefit of objection now here you have a very skilled farmer advocate judge who had i make two quick points yes one minute so you get ok on the last point the court just asked i think that under the sentencing package doctor and if you were reversed on one count and obstruction of justice the court should be able to take that into consideration and we evaluate the sentence as a whole the second point on the multiplicity argument the government in its brief pointed to this court's decision and deal of when today is saying an era conflicting results and that's the it's to another us v thompson case both of those talked about a circuit split in other circuits and that's why the issue could not be plain but here i mean it effects mr love maybe a small extent but isn't it very important issue for other people in other cases i think that the when the unit of prosecution is the use of the explosive it's multiplicity isn't is that really at the council is made the argument that as a law can be distinguished because in fact or you're looking at the firearm you're looking at the features of the firearm a machine gun or short barrel weapon are firearm and here that the unit might well be a different felony so you'd have to go to another statute criminal statute to determine what the felony as opposed to the definition within the statute isn't that a distinguishing feature in that that the verb the use of explosive the commit a felony in these cases whether simultaneous one use of an explosive to commit two felonies simultaneously and the only authority on point that occurred in two thousand nine before this before the indictment or the trial goes our way i think that the errors played ok thank you we appreciate your arguments interesting case