morning please the court i'm joining me brown i represent mr carlson who is the appellant in this matter just a side note of personal interest is less than eight hours ago i was sitting next to joe's late night dinner at the so mr carlson was convicted of possession with intent to distribute not conspiracy which i think is very important in this case he was also convicted nine hundred and twenty four c firearm charge there was a jury trial before judge leighton the mandatory minimum sentence was imposed which was fifteen years the day of the trial his retained lawyer and that's really important to make that stinks and i was about in that recently also so i know the case law pretty well his retained lawyer asked to be removed at mr carlson's request the day of trial at the problem that i request we understand that somebody who's retaining counsel has an enormous freedom to change counsel but the court's allowed to consider its own calendar and in this case the court hears the request from your client the morning trial supposed to begin the jew or jury pool has been gathered presumably counsel and witnesses are ready your client doesn't want to represent himself but he hasn't done anything to obtain a different lawyer so guaranteed they can't have trial that day if he's allowed to change counsel so you're going to run into the court's own calendar problems you've got this jury pool sitting there ready else is prepared isn't that the problem here that that we recognize that somebody has retaining counsel has complete freedom to make a switch except when it runs into these kind of court practical problems and there were you deny there were practical problems raised by their e r in the morning of trial jury pool sitting over there and oh by the way i want to change lawyers and i don't have one yet i'll tell you what if i might well that's why i'm asking the question ok so tell me why i happen to be involved in the same issue with a federal judge zilly who i respect tremendously and it was as you all probably know quite a scholar and he was just so he was amazed because under the new in case the th circuit case and the two thousand and one and then under the corona case of two thousand and five th circuit both they actually says it quote drek quote from new and which was that was the retained counsel pick can be removed for any reason comma or no reason at all but counsel that doesn't go to judge clifton's question the question of whether your client can fire his retained counsel for any reason is is different from whether a court has to allow that if the court says i'm not going to allow it because of my trial calendar and the other things the court here talked about so i that the calculus that he looked at that indicates he abused his discretion well to me i mean i really find this is a fascinating issue because if i'm correct and i might be if i'm correct there is no discretion because under the  and orderly administration of justice it is not an open ended on limited right but so why isn't the fact the trial is going to have to be continued with all those other facts we went through why isn't that justification for the court to say no it might have been if the record was made correctly and it was not there was an unusual and glib sort of a comment from the trial judge which i think was a bit concerned in settling that hard to figure out why the request was being declined right was it hard to figure out why the trial court was not granting the request didn't seem hard to me having been in that situation many many times yes to me it was not clear  because when i had this issue was faced and in front of just really in my case the judge really made this very detailed record because we all know and i'm not familiar with your particular backgrounds but in trial names that we don't get we don't mean the same things or in those cases it's hard to argue with a cut a quote a direct quote that would seem counsel beacon can be removed or allowed to leave for we're talking about the reason yeah but that doesn't say at that indicates that the right to fire retained counsel is excepted by purposes and herenton the fairy fish an orderly in a situation of justice and we haven't we've we've expanded on that we haven't narrowed that it right here the new in court moreover it's on page fourteen of our reply no in court moreover explicitly held that the quote mere fact that a jury pool was ready for selection and sworn or even that the jury was ready for trial does not automatically weigh the defendant's th amendment right to hire counsel choice counsel i don't think anybody quarrels could quarrel with that proposition but i think what we in brown was that when you're talking about the trial courts calendar the interests of justice that the court has the right to weigh the impact on the interests of justice in deciding whether it's going to allow  a very very very last minute continuance and what i'm trying to figure out here is what did the court do here there was an abuse of discretion he looked at his trial calendar he said this it's packed and i just can't figure out why he abused his discretion here well that's a that's an interesting it's a question because my position after reading all this and studying it not only in this case but in my particular case is i'm not sure there is discretion  in this situation however i think nobody is suggesting i'm certainly not suggesting that it's an absolute right that you know in the middle of opening statements you can fire your lawyer no but the trial judge has to make a record and not just say my calendar is crowded every district court calendar that i'm aware of throughout the noon states and i've been in a lot of them is crowded so that is not any kind of substantive analysis period and there is another issue in this case that i'm really concerned about your  discharge is compelled by purposes inherent in fair efficient and orderly administration of justice then it is not an abuse of discretion to deny the motion and here the district court diverted to the fact that its schedule was packed and that's the word that it used and it also carefully weighed any countervailing considerations and determined that an officer of the court's representation that she was prepared to go to trial was a sufficient basis or a sufficient weight on the side of there not being the court court understood that there might be circumstances in which a calendar wasn't enough of a reason to deny al a motion to discharge to counsel i do think your your colleague representing the defendant does make  point that the statement by the trial court was pretty cursory i'm not sure i would describe it as well but it's like i'm really busy i spend a lot of time in trial my trial calendar is packed but he didn't on the record put forth i've got a trial next week i've got a trial in two weeks i've got a trial for the next three months he didn't try to make any determination of how long  delay would be would be necessary given the importance of the th amendment right why isn't more of a finding necessary on the record here well your honor i don't think there's anything in brown or  court's decisions in this area that suggests that the burdens of the trial calendar have to be set out in more detail so i don't think it was an abuse of discretion when the court was going through the the when the court was ending the hearing for the court to  in that sort of a fashion and i think it actually is a little bit more detail than just saying i'm busy in the courts had i spend more time on the bench than my colleagues because i think it's really important to give litigants who want to go to trial the opportunity to be heard and he quantified that in terms of the number of hours he spent on the beach bench in the previous year so i think he did a little bit more than just saying i'm busy he said my schedule is packed but he didn't talk he didn't try to go into how much of a doorway would be necessary here not in those terms but he did ask the defendant and the ex parte hearing have you done anything to try and identify other retained counsel which is a way of getting into like how much of a delay are we talking about here so i gree it's possible to imagine a district court saying more but i don't think what the court said here shows that it abused its discretion in determining that the interests of justice and the public's right to a speedy trial in its own calendar  favor of moving forward especially in light of counsel's representation that she was prepared to go forward it is true that different issues are raised and more often than not this comes up in the context of somebody who's dissatisfied with appointed counsel you have a whole array of issues there and it's true isn't it that none of those factors apply here if you have somebody who's had in continues to use report to continue to have retained counsel so i wouldn't put it exactly that way what i would say is when there's a motion to discharge retain counsel the motion should be granted unless interests of justice which include the court's calendar in the public's right to a speedy trial way on the other side once the court has made a determination that they do weigh on the other side that they do weigh in favor of maine moving forward the court in exercising its discretion should look at questions like what is the basis of the motion to discharge is there other retained counsel are there other counsel available so that the same sort of factors that get considered when you're asking to discharge appointed counsel might come into play but the analysis is of course that as you suggest different it's just they only come into play if there's if there's a reason to deny the motion to discharge based on the inter just a nd level inquiry that is the kind of questions you get in the th amendment pointed counsel context that you're facing a potential ineffective assistance of counsel playing with traction which might force the court to a seed to a delay that otherwise not be required but at the st level what we're dealing with here there's not an allegation of ineffective assistance that resulted here and there wasn't there w expression to the district judge of dissatisfaction and the lack of confidence that defendant had in his existing attorney  that was still at the level where the court calendar administration of justice factors would enter reem there wasn't need for the court to dig any further i think that's right your honor and i think the court had really conflicting statements from counsel and from the defendant about the nature of the conflict and the amount of preparation that counsel had done and i think the court is entitled to rely on representations from an officer of the court that she's prepared to go forward and she has filed all the motions she believes have merit and the case with respect to the defendant's suggestion that the expert testimony from agent jewel was improperly admitted and overly prejudicial i think this court's decision and come as a full answer to that case or to that suggestion the in and from and in other cases this court approved testimony about the practices of drug dealers that help the jury understand how seemingly innocuous events or items of evidence are evidence of drug trafficking and that's what agent jewel testified to here the sort of evidence that that might not have been obvious to the jury what its significance was included hundreds of unused baggies a ledger book with entries that was suggested of a drug dealing and agent jewels testimony just explained without reference to mr carlson or any of the i against him why those things might be indicative of a drug dealer i mean it does seem to me i mean this may ultimately neither be neither here nor there but it does seem to me that there was no real part of the evidence here who significance wouldn't have been obvious to a lay jury i mean this is a ledger that had notation system quantity in it i mean i don't think it is beyond the pale of the jury that baggies are used for drugs i mean was this was this testimony really needed by the government your honor we're not held to the bare minimum of testimony the question is relevance and then whether it's overly prejudicial and i actually think there are other aspects of agent jools testimony that might have been necessary including a personal use dosage of methamphetamine might be the street value of the drugs in question and why that was indicative of dealing as opposed to personal use this was an individual who i diverted through his counsel before trial that his defense was going to be that he possessed more than a pound of methamphetamine for personal use and he testified to that he did it that's right and his testimony in particular i think his testimony on cross examination shows that any error here admitting agent jools testimony was not why what's your response to that so i don't think profile testimony of the kind that concern the court in wells is at issue here because there's a difference between saying what happened in wells was there was an expert who testified to the kind of person who commits a workplace homicide and some of their personal characteristics here agent jewel made no representations about the kind of person who was a drug dealer what he did was he said these are the kinds of items you might find in drug dealing and so it's not profile or personality or characteristics it's just the significance of particular items or particular behavior and this court has repeatedly approved that kind of testimony if the court has now for the questions we asked the judge would be affirm no reason at all and so i'm not suggesting because that would be absurd that it's an automatic rule but there is no record here with all respect and you know having tried three hundred and sixty seven cases as of last week and a number of them in federal court and a number of them in front of judge leighton his calendar is always crowded and most district courts are i really like to address we've leader era over your time i think we have an argument ok thank you the case of