will is that your job is to make a case to refine it make it easy for busy judges who have many cases under play to understand and after reading the briefs of this case  i take responsibility for not doing that to the court but i think i'm going to share it with others one of which is defense counsel and trial in the district court who i think had an obligation to refine and make more clear by themselves but i wish to remind the court that there was no money ever recovered from mr c the government didn't intend to use any eyewitnesses of the robbery mr some money was never recovered from his person in me but it was recovered from the reach the conclusion and agree with the government of overwhelming evidence and i'm often reminded of the government's brief which they claim that the bank surveillance for same for surveillance with high definition asked the government to produce that surveillance so we can see for a fact why why mr stewart thought that he could go to trial at times with the second thing i'd like to talk about is the ineffectiveness of defense counsel destroying every government witness who was present that's the basic foundation of the defense lawyers either but despite what the government suggested in some brief that's not sufficient to re the facts of ineffectiveness in this case the cases we see here rested on d n a on handwriting and fingerprints all forensic experts from which the defense never even requested a voucher for an expert to examine much of this information was given to the defense only days before trial yet the defense never asked for a continuance to its credit government counselor trial pointed out to the court that they just disclosed this for instance there were two handwriting examinations given the second one the school had just days before cry a was to start the defense had not requested a actually for the handwriting perhaps it's more its strongest evidence the government hand was no request by the defense for an answer and when the court said we got to go to trial defense never said anything about it was to the gravest credit  that government counsel a trial told the court that it didn't think that two weeks was sufficient for the offense to obtain an expert get a report and discuss it with the descender for him to make a decision th but it's what i've got i mean it's a it's a long process and can't be done overnight the government can do it because it retains its own actions but the defense can't do that it's a long process that has to be started and cannot has the government served be done in two weeks trial with a lawyer who he thought was unprepared who he did not trust in front of a judge who he thought was hostile to him in that circumstance mr smoot had no alternative  room would stand up and say you know judge i don't trust my order going to trial i don't want to go to trial because he hasn't prepared but the practical people in this room would do exactly what mr smoot did and that is why i recognize the government raises a valid point where it says that this court has to rely on who a weapon kori to make its decisions and it is a valid point but mr sm reply to that argument of the following in this circumstance the judge knew that mr smoot was unsatisfied with his lawyer with his preparation and what the case he knew that matters once or twice but in this case we believe the district court in order to get to the truth had an obligation to say well mr stewart i knew last week that you wanted to fire him or what's changed is your suit i know last week you wanted to go to trial why has it changed today that he may have said that but he made me no moved to do that and the time to write a time of plea was entered and it's because he indicated that he would like to and then i can't remember the exact time frame but several days later the plea was entered so good morning america please the court damn honor screen united states judge from the boss and over again with your last question on september fifteenth the parties had a status hearing at which they discussed the government's disclosure of expert notice regarding th handwriting experts opinion it was at that hearing that defense counsel said that he intended to reach out to find an expert to conduct a handwriting analysis the defendant signed the plea agreement three days later and enter his plea two days after that and so there was an indication that defense counsel did intend to hire his own independent handwriting expert as we pointed out in our brief there was also ample reason for ample basis for defense counsel to the fos examined the government's other witnesses particularly the d n a expert given that there was a mixture of d n a found on the under armor bag that suited use during a robbery but all of this case must be understood in light of the overwhelming evidence of the defendant's guilt for his various kinds he either has to show that rather than pleading guilty there is a reasonable probability that he would have chosen to go to trial or even more so there's a reason that he would have in fact been better off going to trial and in this case the defending cannot show that particularly the surveillance i forgot to do the surveillance show the bank robber placing a magazine or leaving a magazine behind  it's my understanding that that shown on the surveillance this was high definition surveillance although we the video is not before the court in the government sentencing memorandum it took as still shot of that video placed in money that big money were tracked to the location where suv was seen within thirty minutes of the robbery the officer saw him holding what appeared to be a handful of cash when officers tried to pull him over when he left that location he fled to showing his consciousness of guilt when officers attained a search warrant for that location they found pants that appeared to be the same pants the bank robber was wearing they found this under armor bag which could be seen on the video footage that has its d n a on it they saw him wearing that distinctive watch and shoes and in fact when he was arrested two days later he was wearing the same distinctive watch and shoes that can be seen  don't know the science well enough to decide your honour's characterization of the reliability of my understanding is that the d n a expert was prepared to testify that there were multiple individuals d n a present on the back  there was no handwriting opinion definitively linking the notes to smooth until september fifteenth and counsel mediately said he intended to hire an expert the d n a and did not he he didn't that day because ineffectiveness arose from smooths complaint that his attorney never shared with him the first plea offer the government was never concerned about smith's counsel preparedness for a trial and in fact the district court explicitly found after discussing this issue with counsel after having a pretrial hearing at which counsel told the court his defense strategy and the witnesses he had spoken to the court found that the counsel had has made clear that you don't eat it for tax or it's in order to sell it on no the question is i mean you're reciting it so when i read that in the government's brief that's just reinforcing something instinctively would be a question  record dispositively shows that defense counsels adequately prepare for trial the top court found this in much the things that i suggested in my brief that defense counsel could have done were things that would have been done at trial but the trial never happened these weren't steps he had failed to take prior to trial but even if the court has some concern about his preparedness for trial and thinks that there's enough of a question to remain and the defense defend itself as a show prejudice and to show prejudice under the supreme court's decisions and that that's not the case the overwhelming evidence shows that there was no chance of an acquittal here this was one charge so he would have had to have been weighted to be better off at trial and he would have been received this higher sentence because going to trial he would not have gotten the three points off his adjusted offense level for acceptance of responsibility and thus with a face higher guideline range no limit on the government's ability to allocute for a higher sentence and no limit on the government's ability to ask for an above guideline adjustment given that his lengthy criminal history was under represented by the counting system under the guidelines and so even if there's some question on the first part of ineffectiveness there's no question on the second prong and  is true but that's not the real question the question is were there facts upon which he could make that conclusion we suggest that the record is devoid of any his or if you were a trial counsel and scale so what what's your defense what's your way of poking a hole in the government's case with respect to the watch and the shoes common items and i would add that he lived in a house that was shared by ten fifty other people but where i mean when he's arrested he's wearing the watch that is that the stink of watched as shown on the video i would find out how many watches were sold that can stall so sold and what about the shoes to the same this is the same evidence you know i would want to tell the jury that those are common items that they are not distinctive just because they look at unusual doesn't mean that other people don't wear them in that same house he even if you take mr smooths for positive identifications for fingerprints on that magazine you have to point out that he lived in a house with ten to fifteen other people who had access to the same clothes and where the money was also found any one of these items would probably be sufficient that can vary but if you put them together i mean i just don't see why there's just not overwhelming evidence you can have an escalation one of the time  you start putting them together and the explanation becomes less and less plausible with each item i respect i respect that observation and that's why i'm here to convince the court that a lawyer who