having the right to have effective and conflicted counsel appointed to represent him to the right have necessary expert legal service expert services approved when a timely application is made even basics like being served with process or having hearings held on the record or being able to appear at these hearings when crucial determinations such as the status of his counsel are being determined i'm lying wrong or after mr tory era knew he was going to get morning he waited a year to complain about well all right yes and no your honor i would suggest what what the timeline doesn't reflect and that is that almost nothing happened in the case for a year until the government filed on february twenty ninth twenty sixteen its actual factual basis and so pretty much all the legal work in the case occurred or should have occurred had more than done his duty between march and may of twenty sixteen and in may of two thousand and sixteen both morning and individually requests an ex parte hearing to address council issues and mr torrey arrow himself addresses the court seeking two fifty five but what we do know from the record is that is that sometime in late twenty fifteen mr torrey arrow was released from federal custody but again at that time other than negotiations which what is the record  she believes the first contact occurred but point a hand at any point saying when he sent documents no there's no record of him sending documents you know that the government never themselves sent documents nor did the court send documents what the government did tell the court in requesting the april fourteenth hearing is that the you know is that the government hasn't even been able to ascertain you know it's it's clear that in april of two thousand and fifteen things are very unclear and i'm we're just trying to get a handle on when within the next year in amman mr turner around was was  n notice that he was now being represented again by mr moreno but that's a fair question judge can i think i think we can definitely say that at least as of maybe of history september of twenty fifteen from the government status letter the government acknowledges that mr o has been in contact and is attempting to to reach a settlement respectfully your honor i want to address the expert witness issue because the law i think cannot be more clear that this court requires the smith case that when a reason more tourney would would engage expert services for a client with the financial wherewithal to pay for them the court is required under the criminal justice act to approve such expert services and here and in fact in the current court denied the requests principally because it felt it was untimely whereas the whereas the docket makes absolutely clear that it was timely the the the court and it and it's the court simply you know indorsing an order that was written by the government the government didn't know that the application was timely made because it was an ex parte application so because the government doesn't know about it the government writes this proposed order that says he never made he may never made this this application whereas if you look directly on the docket any court that this record would have had to do no more than look to the docket to see the application was timely made you know more than him or about a month before or you know when the court scheduling said it was done on april twentieth you know well prior to the may tenth deadline that the court had set and it's  technical i think i think there are several very technical matters first i just want to say at the at the outset mr moynihan himself represented that he did not feel that he had the technical can to deal with that at the very least the i feel that have looked into that because if one hand is indeed representing that he does not have the technical expertise and in fact never didn't file anything that i think that should be looked ok there are several first there was and the whole issue of the question of whether a what the what the government was claiming was in fact based on the actual fence of conviction which is all the restitution is permitted for or was at least partially caused by intervening third party negligence by the you know by the contractors that the government you know had assumed secondly there was a whole issue regarding the relationship between the fraudulent contests conduct because again my client was only actually convicted of fraud is this court previously found when this was authorized and causation issues the actions there were causing asian issues and there were questions about you know whether whether things were done that were more than necessary and there were questions about what was attributable specifically to mr turi arrow and the fraud that he was engaged in as opposed to the dumping activities of his four co defendants so those were all issues that that an expert mr moynihan himself told the court that he you know would have needed assistance to another question on really i thought that there was a time limit on amending a judgment did do when he was ordered to respond in april two thousand and fifteen is specifically raised this issue you know it's in the joint appendix on the time and s and and absolutely raise that issue and and the district court completely at no point in just to be a basis of the appeal on i'm just wondering why why the timeliness issue wasn't pursued and i might be missing something well it's it's i  would suggest your honor that there are there were a number of issues that it's it suggested to the fact that the district court it's i would concluded in that sort of third catchall substantive on reasonableness in that none of the five different issues that moynihan raised and you know that i had you know i don't want to brief to be like seventy pages or one hundred pages or to go into all those five different things but there were of number of issues raised and none of them the timeliness issue i didn't see anything written on it but i thought that when we enter a judgment and there's a question about restitution and i think it was ninety days to amend the judgment and later on is that enough for good cost i would i would say that it is a ghost will i would say that it is one component of that and here the district court contemplated that it would be amending t restitution order to account for later incurred costs and as soon as e p a finished cleaning up the site and had ascertained the costs that it incurred it timely filed its request to modify the restitution award or order the record judge ruled on the timeliness of the matter and mr turow has not presented that issue on appeal if the court would like additional briefing on that matter i'm happy to submit something u expert both on the merits because the court found that that he had not demonstrated a reasonable necessity for an expert and because of the trick or such a schedule contemplating experts  that's the just record it's not a schedule contemplating experts if the defendant made such a request which the defendant did but regardless of whether or not the just report had contemplated possibly appointing an expert the defendant would have still had to show that an expert was reasonably necessary for his defense and if you look at his and his ex parte requests which is in the sealed appendix all mr morton had stated was that he needed assistance assessing the strengths and weaknesses of the government's case for the reasons that mr newdow presented just now were nowhere presented in that original motion and the government's amidst that a request for assistance to assess the strengths and weaknesses of a case amounts to a fishing expedition in other words what mr morning had needed to do if you believed an expert was reasonably necessary would be to identify a particular defense that he had already raised for example and his substantive opposition that he filed in april twenty fifth teen and explain that he needed additional so he needed an expert to bolster one of the defenses that he had raised previously or to develop a new defense that would be pivotal in the restitution in defending against the restitution award he did not do that here and without having done that he can now say that he was prejudiced on appeal or demonstrate that an expert was reasonably necessary i would also submit that setting aside we do we know th reasonably necessary and that is that language is at the bottom of page twelve and at the top of page thirteen of the district court's order i would also submit that irrespective of whether the the court  in portions of its of its ruling it doesn't matter because mr torrey arrow has not shown up at the outcome of the restitution proceedings would be any different the mandatory victim's restitution act but let me go back to the council issue for a moment under our case law you know kersey zero and it's the cases that follow a district judge has an obligation to initiate an inquiry when it has been apprised of the even the possibility of a conflict of interest the government's ladder surely apprised of the possibility of a conflict of interest would you agree with that i would agree with that moyni was actually relieved on appeal because of a potential conflict of interest do we know if the district court initiated any kind of inquiry on on the conflict while the district court did have a hearing as to who was representing which defendant and abrams not transcribed which was not transcribed by a what was said at that hearing i would submit that it doesn't matter for this court's resolution of the claim and here is why mr torrey arrow stated and prior to his first appeal that he planned to allege that mr moore had coerced him into pleading guilty he was appointed new counsel by this court on his first appeal his new lawyer did not raise that claim in his direct appeal challenge only the term of his imprisonment and mr torrey or was also given an opportunity to file a scene there wasn't a conflict he was given an opportunity to file a supplemental pro se brief alleging that he had been coerced into pleading guilty he did not do so when mr do agree that when it came back had to coerced mr tory or no into pleading guilty which has no the only way that that could have put created a potential conflict would have been if mr moore and i had was going to be no obligation to inquire about whether indeed there was a conflict a potential conflict off the record shows that it's not clear that he consulted with him before but he did consent let him sultan with the client before the con french how could he even talk intelligently about whether there was a conflict the record shows that he was in consultation with his client immediately after that april twenty fifteen conference and we know that because he request he had requested the district court to produce mr torrey arrow for the for the scheduled april twenty fifteen hearing on restitution two weeks after that hearing was adjourned to july so that mr turow could be produced mr morning and then submitted a letter stating that he had been in touch with mr torrey arrow who did not want to be produced for the hearing so as early as april we know that mr morning and was in touch with mr torrey arrow there's also e mails in the joint append in the appendices between mr torrey arrow and his and his lawyer mr moore to hand that discuss the the defense and that indicate that mr morning had was expecting mr torrey arrow to get back to him with information that mr torrey arrow fail to provide so that the record is full of instances of communication between m and miss more to hand and and we would submit that the fact that mr morning i was never placed in a position of having to allege he coerced a guilty plea means that there was no such conflict and no need to even inquire into the possibility of conflict  if the court has no further questions as the amount of time and another minute oh my apology as you know the district court after the first report i think sent to the government i need more he had incurred so the affidavit explained the costs that he had incurred and how they were attributed to mr tory or con conduct what i would like to emphasize to this court is that the mandatory victim's restitution  act simply requires the government to prove that the that the victim incurred the costs as a result of the defendant's conduct and here and the burden of proof is preponderance of the evidence here the government has more than met that burden of proof with environmental engineer with twenty years of experience with the p a and used that expertise is the basis for for presenting this detailed factual a these costs that are at center was that in the request no what mr moynihan stated was that he just didn't understand the documents anyway that he was not in a position to feel he he said i lacked the specialized knowledge necessary to analyze the costs associated with the superfund cleanup i want to address the law for a moment the case of to read because it makes it clear that this test needs to be interpreted for the for the basis of the of the fairness of the adversarial process broadly in favor of a defendant seeking an expert in order quote to redress the imbalance in the criminal process you know between the fact that an indigent defendant has no resources and the government has the resources of people like lopez and environmental engineer with twenty years experience that they can trot out with five thousand four hundred pages you know of technical support to just quickly pivot to the to the council issue a short was never was not even allowed to participate in this hearing he was not present at the hearing he doesn't know what happened in the hearing was held off the record so we don't know what happened i don't know what happened i wasn't his trial counsel i wasn't the hearing either none of us none of us being you know meet me or mr torrey arrow or any of the people here in this court know what happened at that