please the court i would like to reserve three minutes of my rebuttal time and there are three main issues that we've raised in the brief but i'd like to focus the argument today because of time constraints on the denial of the right to counsel of choice and on that issue i think i'd like to focus on three aspects of the trial court's ruling that we believe violated mr matz's right to counsel of choice but to start off with a framework the supreme court in united states versus wheat held that a criminal defendant has the right to counsel of choice and there is a presumption that the counsel of choice that is that that the defendant has chosen and has retained is going to be the one that's going to represent them to try more recently in united states gonzalez lopez the supreme court ruled that that is a fundamental right that when it is deprived improperly is a structural error that affects the entire toff i believe that that right was violated here when the trial court denied mr mat think that the way that that issue played out here was not the way that it should have played out here and here's why so in a in a case where you're talking about a real lawyer as witness case you have a lawyer in for example a tax case who has created the tax shelter and is actually a witness to something here mr tie ach was not a witness to anything mr tayyab drafted a letter d o j pre indictment as many many counsel do and it laid out what the defense position was in the case and so he was no more a witness than any lawyer who writes a lawyer to the department of justice and just lays out what was ultimately mr matz's defense at trial which was that mr matzoh defense at trial was that in part mr pappas was now his to his new story has recanted story was that was not true that is the his claim that he was not the custodian of records and not the owner of the george pappas aristotle matzoh law firm was not true that was mr matz's defense at trial and there was really no that was kind of where the the problem started here was th was not the typical lawyer as witness case in a real lawyers witness case like swofford where the lawyer had actually the lawyers advice was in question because you had someone who had was charged with he made and he made it in such quantities apparently that he got in trouble under the drug laws and he had gone to a lawyer to talk about his use of iodine and that lawyers testimony was in question but here we had just the typical pre indictment representation from a defense counsel to d o j where you might be right if this was only a tax case but this has this additional element of the of the of the obstruction charge well it does have the additional element the obstruction chillis assume that is testimony wasn't going to be relevant or necessary in connection of the underlying tax problem why why would that be true with respect to the obstruction charge well here even the letter itself was such a extraordinarily minor part of the obstruction charge to be sure the government did include it as one of thirteen overt acts in the indictment as one thing that had been done but but the first time he got up to talk about this mr tie ach made clear to the court there will be no dispute that i sent this letter on mr matzos behalf and there will be no dispute that this is our defense that is the jury will only be asked to decide whether or not mr pappas was in fact the custodian or whether mr madison was so there's no advice here that's in question at all and so with respect to this if that's true why wouldn't he agree to waive vice of counsel defense well  one's being specifically put to the test because i understand it in refusing to do that i mean that certainly would raise a lot of red flags with a judge well i don't think that's this record so in august two thousand and ten hearing his lawyer mr tayac said unequivocally that he would waive the defense as to that letter and that was the letter that the prosecutor had mentioned in the it is why it wouldn't sign it well what happened what his client would sign a waiver that said he weighed all the advice of counsel defense as to all time as to all counts in the in die when discovery hadn't even gotten started and so the judge had before him a discreet issue would mr matz away the advice of counsel as to this particular letter and his lawyer said yes and then the prosecutor said well but hold on here i want him to have independent counsel because  i want what he described as a legal way for him and then that's in fact what the prosecutor wanted up submitting to the defense and when that process broke down because the defense mr tayac said in the august two thousand and ten hearing we're not going to agree to a big waiver we're going to agree to waive advice of counsel with respect to this letter because it's a non issue in this one letter was it that the upshot of all of this that would be in the way is that there was no way in which the district court to disqualify mr tyin because of the possibility he'd be a witness what i think if that were the record that that debt outcome would be correct but i don't think that it's as though what's different about this record from what i just said well in the modest two thousand and ten hearing the judge at least tentatively decided that mr matzos counsel mr could stay on the case and but the only thing left to do was work out a waiver of advice of counsel and the judge left it to the parties to work that out the government submitted a very broad and it's in the record so how does this make a difference in the district court inability to determine that mr ty ek would not be a witness was not infect result well that it in my view of the district or didn't do two things the first is that the district court didn't actually run the risk waiver process to grotty important independent counsel never talk to independent counsel about mr matzos position the only evidence we have of what mr matzos position was was the son of tom tie at making kind of an ambiguous representation in a telephone conference about what he thought the independent counsel mr massa had resolved so the judge never ran that to ground and in the pleadings it becomes clear that mr matz is still taking the position that the waiver was too broad and so that now what should the district court have done with respect the independent counsel you think the district court should have inserted it into the relationship between mr betson someone who is the point in doing the and with respect to this issue will he should have gotten he should have got mr matz position on the advice of counsel defense from independent counsel and not from as the prosecutor described the lawyer who had a conflict with respect to independent counsel and clearly from the record didn't seem to know much about what mr matzos precise position on it was and so he should have gotten to the bottom of that he should have inserted himself into the stipulation process and because it seems clear from the other well does the district court in negotiating or a rabbit stipulations on the head of party well it's fulfilling the presumption that counsel of choice ought to be the choice in the case and so what that's one thing the district court and i think the second thing that the district court didn't do and i think this is a bigger problem is that the supreme court in wheat said that the district court has a responsibility to ensure that the government is not trying to manufacture a conflict in order to to  wong time counsel as here and one time successful counsel off the case and that is the that's not that that analysis in the supreme court said that the district court must do it is not is not evident anywhere and here i think you have about as strong a case as you could get from the first day of arraignment the prosecutor apparently approach your approach both mr ty x and his son about the need to withdraw from the case because of what he called a conflict and he points to one paragraph in a twenty to one twenty two count indictment as this means you're off the case he raised it the first chance that he had in a case where the trial judge had found that he had made that mr that the prosecutor had made threats to counsel even before counsel started the representation at the pre indictment stage and so you try that all the way through it was clear that this prosecutor was very intent on getting mr tie off the case and the judge didn't take it that might be construed differently by different observer as a very commendable candor on the front end as to the prosecutor's intentions i mean likely if the prosecutor had made his intentions known from the get go you could be characterizing it as the prosecutor having h it's raised what he done that will haunt her and makes it much more difficult well i certainly think there are cases and certainly cases where real lawyers witness cases not lawyer sent a letter to the department of justice advocating the defense theory and that makes the lawyer a witness in the case where the prosecutor's raising the issue early would be commendable and would be something that the district court and the defendant would want but in a case like this one where he raised it over and over again and then you have this problem with the with the stipulation where the stipulation in the prosecutor wanted was a waiver of it vice of counsel defense writ broad with a defendant who had consulted a number of lawyers not including outside of the  medication about that and it's also would be natural to think that perhaps mr met would wish to look elsewhere to place bunny for the discrepancy between the representation and the records found in his office well i think well i have a couple quibbles with that i mean the first is that that the records speak being found in mr matz his office still didn't resolve the point of whether or not the letter was false because the position that was taken in the letter was that mr pappas owned a law office and so he was the actual testimony of records and so when if mr patz had mr pappas had said that precisely that to the to the ohio bar and it was several other occasions the probably the government would argue that in the discovery of the documents did that permit the inference of fox to do but whether that is the case or not if there are no weather questions at this time i think your time's up and you'll have your  the court alyssa hurt me and for the united states as the court is no doubt aware this was not a typical or standard tax case there was a lengthy effort by the defendant to conceal his income and assets from the i r s but there was also extensive and complex and concerted obstruction of justice here with regard to the counsel issue my colleague ignores some important evidence in the record and i would specifically point the court to the september twenty first two thousand and ten teleconference again that this was an issue the issue about the potential conflict of mr tie ach was an issue that was extensively briefed below that is your court had a hearing in august where they do a potential waiver of the advice of counsel defense again there was supplemental briefing and then the court had a teleconference when the negotiations over the stipulation reached an impasse and the court specifically in d of defense counsel during that teleconference what i want to be clear on we have a substantive dispute here it's not a language issue would that be accurate on my part and so the court is specifically saying is the problem you have here with the wording of the stipulation is it is it too broad is the issue with the wording do we need to try to edit this can we can we try to make this work because the district court you know had indicated earlier that it was inclined to allow mr tighe to remain as counsel if they could work out a stipulation if the defendant would agree to waive calling mr tyke as a witness at trial and defense counsel clearly represented to the court it's a substantive issue with respect to waiving the advice of advice of counsel defense is the substantive issue it's page five of that transcript you know why proceeds by biasing the defendant you need to have another warrior here as well as mr try if you want to represent you and he's going to  did not test for i he did testify or order to test for two he testified on direct examination that he had advised the defendant not to file a report of a foreign bank account he discussed  the letter that was the subject of the objection of justice counts and his how those representation were based on his review of filings on cross examination however the defendants excuse me m testimony differed from the defense in this case and he testified that the defendant had not fully disclosed information to him that would have been relevant to the advice he gave to counsel so if you review mr tykes actual trial testimony again here because he was call witness we don't have to speculate about what he would have testified to his his testimony is in the record and it demonstrates that there was an actual conflict between what mr tighe testified to and the defense in this case specifically with regard that september twentieth letter he testified the letter represented that one of the entities identify and in the subpoena that mr massa had told him that that entity was defunct was no longer in existence there were no documents responsive to the subpoena related to that entity on cross examination the government showed mr tie ach tax returns for that supposedly defunct entity that would have been responsive to the subpoena that were discovered in the office over which mr matzoh had sole control  admitted on cross examination that those documents were responsive to the subpoena that he was not aware of their existence that he never told mr matz and not to turn those documents over in response to the grand jury subpoena and in response to your  your honour's question about alternatives i think the district court here was concerned with maintaining the integrity of the proceedings and it's well established in this court's case law the model rules in the ohio rules of professional responsibility that serving as a fact witness and well notion of sort of having standby counsel or having another attorney available might work in some instances it depends on when it becomes clear that the lawyer is going to be a witness in the case and i would submit that it would get would it would affect the integrity of the proceedings to have trial counsel representing defendant for the first half of the trial and then midway through trial defend the defendant say well i've decided that i wan counsel defense i'm going to call my lawyer as a witness and have the other lawyer take over again all of the issues that the rules and this court has recognized would be the reason why that would be improper what would be he motion to disqualify it that when you have an attorney that trial counsel serving as a witness it affects the integrity of the proceedings it could cause the jury to think that perhaps the lawyer was giving bad advice that the lawyer was somehow involved in the criminal conduct or credit you know to credit the lawyers testimony more because of because of his role as an advocate before the the court again it's well established that that's that's that's simply not acceptable in the district court is granted broad discretion wide latitude to do to make determinations about potential conflicts there's another alternative i mean another thing that the district obviously there were reasons a district court chose not to do that he made it and that that would have been a way your preserving mr titus who wrote in the case at least for a time yes your honor but the district court again in its order made clear that it's you know it's disqualification of mr tak would not prevent mr tired from assisting the defense from imparting all of his knowledge from his prior representation of mr matter to new defense counsel and again because  something wrong with the appearance of that i still don't get why we we've got a rule here that there is a pretty clear absolute right to counsel of choice as a constitutional yesterday and then we've got a non constitutional rule of professional responsibility concerning council testify and then we've got a standard supreme court's decision in gonzalez lopez which was its most recent discussion the right to counsel of choice at the very end of the majority opinion the final paragraph discusses the court's previous decision on weed and states that the defendant's right to counsel of choice does not override that at the ethical rules does not give the defendant a right to elected council and again affirmed its holding in wheat and wheat and also this court's decision and swofford made clear that you know the district court is in a tough position here he has to make a pretrial ruling about a potential conflict that could and that could affect the integrity of the proceedings that could result in an actual conflict between the defendant and his counsel and that the standard of review be the whipsaw effect essentially that the government and the court ignore potential conflicts of interest at their peril because it opens the proceeding later to a claim of ineffective assistance of counsel so there is danger on either side and that is the reason for the differential standard of review it seems to me that in this case the the opponents task is made a little bit harder by the fact that the the attorney did in fact testify so i can see that because this waiver of the advice of counsel defense didn't take place that he might have at that point said well the guy's been disqualified he is a witness i'm going to call him but having said all that has the defendant ever said that in fact he would not have called this witness as and as he did had he been permitted to stay on as counsel i'm not aware of any representation to that effect i have not seen it in the record and i  would note again that just trying to figure out if he hasn't if he hasn't ever said that he wouldn't have called the guy we now know that he did it seems to me the the u s attorney's prediction that there would be a serious conflict here because he was going to be a witness came to pass so the ki figure out how you undo that i would know for the court as well that during that preach trial all of the pretrial litigation regarding the conflict in the disqualification of counsel the parties were focused on the september twentieth two thousand and six letter that responded to the grand jury subpoena and while mr tighe did discuss that letter in his testimony the bulk of his testimony was actually providing direct examination providing advice of counsel defense for an unrelated count in the indictment which was the failure to file the foreign report of a foreign bank account and mr tighe testified that the defendant had told him that he had sent some money to the netherlands and he advised the defendant that he did not think that the defendant needed to disclose that to the i a report with the department of treasury in in his motion below in his post motion for a judgment of acquittal defendant argued that that testimony that testimony regarding the foreign bank account advice was a complete defense to that count in the indictment now again that was not on anybody's radar and was not on the government's radar or the courts radar during the pretrial hearing but i would suggest that somewhat disingenuous to argue below that his trial counsel that you know his previous trial counsel's testimony constituted a complete defense to one of the counts in the indictment and then to say well he was an unnecessary fact witness it also illustrates the problem the trial judges have of trying to figure out what the defense is going to be because least i never figured out a way to compel the defendant to stake out a defense before you actually the government completely pleaded its groups and the defense had its chance to go forward and i would also know that the district court rejected the argument that that testimony was a complete defense to the foreign bank account count because of the damaging admissions that mr made during cross examination that the defendant had not told him that the account was open for several months that he was a signatory on the account and that the fun that that that final paragraph in the majority opinion in lopez sort of makes clear that because you do have you know a defendant has a right to counsel of choice but does not have a right to have somebody who's not a member of the bar represent him for instance does not have a right to you know to demand that conflicted coun represent him and i guess i think because of the difficulty of the pretrial determination that accounts for the differential standard of review i would note that this court's decision in united states versus swofford which was a two thousand and eight case so it decided to years after the supreme court's decision in gonzales lopez this court upheld the district court's disqualification of counsel when the defendant had agreed to waive presenting the advice of counsel defense and when the attorney who he claims to have relied upon was a member of the same firm as this trial counsel wasn't even the same attorney and i would suggest that the facts of this case offer a much stronger basis for affirming the district court's disqualification order because of the explicit refusal to client wanted to employ the defense that he owed to that bully employ its numb point he would have had to tell the court about that and we would have ended up exactly where we were where we are today i mean the same result i mean there was no way given your client's choice of a defense they were going to end up with mr tie ecas counsel for the defendant dr oh i don't think fault but once his once his lawyer was gone the lawyer corroborated mr matzos defense i mean first of all to talk about a conflict is just not so here there's no conflict if the government unequivocally say in august two thousand and ten we're not calling mr tight they knew that mr tayac was if anything a defense witness now i don't think it was a defense witness to much but he was a defense witness so once tie at out of the case once i ended the day the government did get something out of him not relating to the apparently cannot that was the subject of the advice of counsel defense but with respect to obstruction the government did obtain some favorable information from mr tie at right on balance i think a fair reading very defense friendly which is why the defense called it wasn't perfect because the government scored a couple of points on cross as they will with any witness but i agree that once one stacks been disqualified then there's no reason why you can't call them but is it not correct analytically to say that you do have to be able to come up with some sort of justification for why you wouldn't have called him had he stayed in well and i don't see that you even say that well i thought we did and if we didn't i'll say it now i mean the justification so you had you had what you considered to be an absolute defense to one of the counts not the count that was even talked about and he would have foregone that had stayed in his lawyer that's what you want us to believe well first of all it's one count in a twenty two count indictment it is a minor count in the twenty two count indictment and it's not you know certainly you can argue that it creates an absolute defense if a jury believes that if you started out saying this is a structural error and the harmless error doesn't apply so saying oh don't know oh nevermind it's only one out of twenty two i mean that's not how we look at it as a you know what i'm certainly not but what i'm saying is that once once the lawyer is gone from the case then there's no harm to calling  a witness because the lawyer is gone i agree so it but am i not right that in that analysis though you would have you still have to be able to claim hopefully with some justification that you would not have presented what was presented as an is that if you telling is that now or is there something is there something that's been said previously i mean was what once it's very hard to recreate i mean this is why the supreme court said in week that you have to do this prospect of it's very hard to recreate what would have happened had the judge left mr get your argument in your briefs was not i mean judgment is just work if you take a position that you could not previously taken with that big rig i think that's fair but i think it's that nobody has asked before this what his position what it and to recreate back a year before and think ok if if i had had the lawyer who had won cases for me over the years who'd been my long time counsel of choice who is my understanding is one of the few lawyers who had beaten the same trial prosecutor in a jury trial in this jurisdiction if my choices i get rid of him in order to get a obviously not airtight but a partial defense to one count in a court twenty two count indictment if that's the choice that he's putting to i think most defendants and i think it's fair to say mr matzoh would have made the choice to keep his lawyer and try and win the case that way as opposed to having a lawyer as witness on one of the twenty two counts well maybe but that goes back to then the question of this it's this arbitrary or without adequate reason standard that we apply so it's just one factor in the mix at least you'd agree with that would and i think this was a factor that really wasn't even considered because i think part of the problem here is that what could've been considered to the dime had happened right and i think well and part of the problem was this was done so early and i think this was mentioned in the september twenty first telephone conference this was this this issue was flagged so early that it wasn't clear that the defense had even gotten to discovery yet and so they didn't know what issues were going to arise at the later trial nobody was making the tie awkward even potentially be a witness on this other count that it was all only talked about the letter and with respect to the letter there is no way i can tell you unequivocally that mr madsen would not have called mr to talk about that letter at trial because there was no point the letter was his defense and mr tighe really didn't add anything to that and that's what was discussed at the time once you got to trial with more information would mr massive made a different choice i think that he would have but again i think we're just speculating about it and the last i did want to say was i do agree with you judge mckee and judge merit and i think and you also phrase this as well this the standard of review in one of these cases seems very odd where you have an absolute constitutional court has substantial discretion it's some point to say no indigent defendant doesn't get to select his own lawyer from the panel when you know they've used all kinds of it's in the coal context of these decisions that trial trudges may be a better cancel for a defendant when the defendant has a different idea about what the been well i think there's potential for abuse on both sides and i think the judge didn't do his job by not taking into account that the other side might want this guy's longtime counsel choice off the less there being any under any misunderstanding it's probably more accurate to say there's an absolute right to counsel but there's not an absolute right to counsel of your choice there obviously are limitations set forth in the very cases that you cite oh absolutely your honor but i do think that the th