right good morning may it please the court stefan williams trial counsel labored under an actual flagrant conflict of interest trial counsel in this case simultaneously represented both mr williams and  government witness testifying in order to earn a sentence reduction and in fact did receive that reduction while still being represented by the same counsel the situation at mr williams trial is one that the old fifth circuit in steven said should never happen this is because counsel owed a duty to this government witness that was directly in conflict with his duty to mr williams so the inconsistent interest in this case are clear and undeniable now the government only argument on this issue is that there is no actual conflict because this conflict witness did not mention stefan williams in his testimony but this is a straw man argument first and foremost because this is a conspiracy case and the government itself pointed to this conflict witness's testimony two different times in their closing argument to argue that they had met their burden of proving the drug quantity alleged in the indictment so the government itself encouraged the jury to use this evidence against mr williams further than that this witness's testimony actually explained some of the other evidence against mr  williams such as his use of the term trafficking in a wiretap and finally this witness's testimony actually bolstered and wended credence to the testimony of other coconspirators who did provide direct evidence against mr williams so it's clear that even though mr wood williams was not mentioned in this testimony it did impact him and the government in fact encouraged the jury to use this testimony against mr williams so therefore it would be a reasonable thing for counsel to cross examine this witness because anything that counsel could do to discredit this witness would benefit mr williams was it mr quinn was or anything either in the sidebar that the defense lawyer asked for or any were prior or after in the record about whether or not mr williams knew about the representation forget whether he consented to or waived any conflict or whether he knew about the dual representation no your honor there is absolutely nothing in the record indicating that mr wood is made aware of this conflict and in fact he did not know about it until i told sentenced by the same district judge yes your honor the same judge stan's also accepted his his plea and sentenced him with the same lawyer representing him so that's where the knowledge would have come because mr bennett pled to before mr williams trial right yes your honor and he was sentenced before mr at least the initial sentence was before mr williams trial because mr bennett was an appeal at the time of mr williams trial that i think here it's clear that we have we have a witness who is represented by the same attorney who is offering evidence that is to be used against mr williams so it would be reasonable to attack this witness's credibility and we know that counsel knew of impeachment material because as your honour's have pointed out counsel was representing him in this appeal and therefore knew about the letter to mr tombs and also knew that mr bennett had actually received an obstruction of justice conflict they in fact created it and well i think the conflict in this case was unavoidable really because the two interests are inherently in conflict with one another and that is one of the things that decision instructs says can establish the link between the conflict and the failure to cross examine this witness is simply the fact that these two interests were inherently in conflict with one another and i just want to briefly note your honour's i am ready to take questions on the eight fifty one issue if you have any questions but i'm happy to continue talking about the conflict as well ok we can also see that cross examination was certainly not undertaken because of this actual conflict and that's because of that agreement that counsel and the government put on the record at the time that mr bennett was called counsel made clear that this was an effort to avoid creating a conflict and it's implicit that they were doing everything they could to avoid having counsel cross examine his own client because yes you're still want yes sure because this is a conflict claim and said the strickland analysis does not apply a conflict claim has a different analysis that comes from the supreme court and sullivan and and there mr williams does not have to show adverse effect on performance once you show actual conflict yes your honor it's the effect on the lawyers performance  that everything doesn't come out into the record so you don't know what makes learned from bennett about this overall operation in representing him at sentencing in his case ahead of time exactly right so you know you don't know how much strategy the lawyer may or may not have engaged it yet so that he it conceivably but we don't know if he could that gotten better to take blame away from good morning made place to court the government in this case presented evidence of an on charge conspiracy other than the one that was charged in the indictment this material variance prejudiced mr tunes since the evidence presented a trial on the charts conduct amounted to no more than a buyer seller relationship so it's very likely that a jury in this case must have convicted mr tombs of the on charge conspiracy especially in light of the fact that there were no conspiracy yes your honor didn't mr donaldson testify that they he mr bennett and your client grew up together and had done business together and that he and mr bennett were quote partners i but my recollection from the transcript is that he referred to them as partners and they did business together i don't believe he did it but i stand corrected the report has something different from my recollection of the record is that mr donaldson testified that mr bennett did in fact up tain drugs from him and then my position is that the fact that there could have been a shared supplier between mr donaldson at some point w bennett and mr toombs also buying drugs from mr dollars then does not necessarily equate to conspiracy but i think more importantly is that the government conceded in its brief that this was a separate conspiracy more so in its closing argument and opening statement to the jury the government did reference to the jury specifically on document three twelve page forty seven which is the government's closing argument to the jury that they are to that they have presented evidence regarding mr bennett's conspiracy and the amount of drug that was involved in back conspiracies basically it's separate from that in reference to the domiciles organization that's not my recollection power was present and i think that the argument was this is separate from the seven hundred correct whatever drugs i think it's a lot different than the way you amount of drugs and so if this was one overall conspiracy i don't think the government would have needed to point out that there were separate amounts involved if the jury's sole purpose was to find a conspiracy involving amount of drugs that was charged in the indictment which is five hundred it and my my position is your honor is that given that this evidence of ace benefits conspiracy came into trial that if you c one of the players on the team at the time close quote being a player on the team the jury could certainly infer that that's part of his part of conspiracy however the only evidence that he presented in reference to qualify that statement was that my client bought drugs from him also so there is no question in my client bought drugs from mr donaldson at times and from mr rhys at times but other than that there was nothing else to qualify that he was part a conspiracy in its brief the government points to basically two facts one regarding the sales which i stated does not necessarily suffice to just establish a conspiracy and the second  pointed to in his reply brief is that on one occasion mr toombs warrant mr donaldson of police presence in the area my position is that a single warrant in of that nature does not necessarily establish a conspiracy rather this was more stuff preservation since mr dawson had an interest in making sure that his supplier was still available to to splice him with drugs it will stand to reason that he would warn someone about police please the court i'd like to begin by addressing mr williams argument concerning the conflict issue and i would like to start by asking a preliminary question of course  king said that the first time we made it were the potential conflict was post trial when she described it to mr williams do you have any evidence to the contrary i don't have any evidence to the contrary and i think that brings up the point that that one of the potential problems in dealing with this at the appellate level is that we don't know a lot of the facts we don't know a lot of the and lying issues that were at play first time because what's in the record suggests that the parties had clearly talked about it at some point but what about the judge the judge already do it for such a better the mix was represented better  i we don't know when the judge was aware that he was representing williams also yes i mean can i try to page it with the record that it's impossible it is impossible which again underscores sort of the the the problem of trying to decide this on direct appeal and underscores the the possibility that this court might choose to exercise its discretion not to address it on appeal and but to send it back to the district court without a decision here in this court but what part aside from his consent what possible issues would a district court have to decide on remand i mean you've got you've got dual concurrent  representation of two individuals who are charged although separately arising out of the same transaction and one is testifying as a government witness in the other one's trial and the lawyer chooses not to cross examine even though he had ammunition on which to cross examine and hammer credibility that's all you need i mean we we have an old case i don't think it was cited by the parties but we of a crime in a civil case and then that person is testifying against a criminal defendant in the criminal case both people represented by the defendant and we find that that's an actual conflict you don't have to worry about anything else you don't have to look at anything else well that's what happened here i mean how could mix not have divided loyalties with regards to mr williams and regard to mr bennett well respectfully your honor i don't i disagree that we have an actual conflict how does he not have a divided loyalty well so  let me just make a couple of responses to to your comment first under peg in order to establish an ad i mean here we have to show an actual conflict and an adverse effect and we can't just presume it and we can't base it on hypotheticals and then to friend you have to show excuse me under peg existence of a possible alternative defense strategy or tactic that might have been pursued that they alternative strategy or tactic was reason one of the facts a link between the actual conflict and the decision to forgo the alternative strategy you started your defense so number one i would tell you i do not believe we have an actual conflict here i don't believe they've established it on the record because because there were there really is no showing that there were that that he had to forego any thing on behalf of williams because of his representation of the court and the answer i mean to me and i speak only for myself i have a completely different view his client oh one of his clients bennett had received an obstruction of justice enhanced meant because in part because of the letter that he had sent to somebody else minks knew about that because he represented bennett at sentencing and they were on appeal and he was trying to get that obstruction enhanced meant set aside and if he was successful they'd go back down bennett testifies to trial and he doesn't cross examine bennett at all and impeach him on the fact that he's obstructed justice and that he's li and tried to subvert the criminal justice system he just sits back and does absolutely nothing and bennett's testimony purportedly was important to the government because they corroborated other testimony about the existence of the overall conspiracy and some of the ways that the conspiracy worked may have in mind the court of exactly what mr bennett's testimony was it was very short it was directed only to tunes and and again your honor go into these  conspiracy just had to be if not his testimony would have been irrelevant now mr bennett's testimony will be yes the conspiracy because it tied back to mr donaldson very clearly he says i've known mr teams for twenty years he sold we've sold cocaine base and cocaine powder together mr johnson was the cook and we got and he supplied us with the cocaine that we turned around and sold mr bennett would get the powder and he would give it to  mr donaldson who had converted to crack it tombs took over bennett's customers one bennett was in jail and then bennett stop selling crack and to sold all the cracker cabs i've got to another question on the same track has it still has an attorney client relationship with with bennett yes at that time yes he's anxious bennett getting a reduction in sentence if he's adequately representing him yet as suggest that the court could ask manx any questions about his relationship with bennett because he wouldn't then they'd turn a client privilege and he can't ask him any questions about his relationship with williams for the same reason he can't sit there and tell the judge going back in time here's my here's how i dealt with bennett and what i what i've learned from bennett and why there wasn't a conflict at cetera that's my problem h to it had an obligation to ban it at the time he would he was in the courtroom prepared to cross examine williams he had a duty to bring out from bennett every piece of evidence that bennett could could  went to the house that that that's why that turns got a crack from donaldson because you have to go to grandma's that's where it all was they did the cooking there in the shed probably but at any rate the point i'm making is he had an abiding obligation to that mr bennett right to get a rule thirty five redaction didn't depend on the success of the case it all it depended on was for him to testify truthfully and weighed all how many more cases bennett could have made for the government we just don't know all i'm suggesting is he was still his lawyer and he had an obligation to help it as best he could and we we don't know i know all about trial who do you think his lawyer who is mr many who's representing williams the trial yes that's just crazy it so there's a de brief and the government says ok we want to talk to your client see what he's going to be able to testify about and so there's a de brief with minkes then the prosecutor and they're talking about what bennett's going to testify at a trial going to tell us about they cited no they're not but it is can it is it is this court's regular practice not to consider claims in effect assistance of counsel for the first time on direct appeal and this is under the guise of ineffective why the bar is set so low in this case to get a conflict situation because we don't have these kinds of discussions on the pet level so the parties at the trial level should be very careful not to allow these conflicts to occur i understand they tried to work it out but you can do you have do you know of any cases where there is dual representation of a criminal defendant and a prosecution witness at the defendant's trial and the holding is there is no actual conflict your honor i was refer the court in that situation to united states or stevenson versus newsome  seven seventy four fed second fifteen fifty eight in new seven the court found no conflict at a personally affected representation even though the same attorney represented the defendant and a witness the court found there was no reason for the lawyer to cross examine the witness because the witness's testimony did not implicate the defend it and i would submit that he had that what here was that one thousand nine hundred five eleventh circuit thank you and i would submit we have that here your honor because there was no reason for mr mannix to cross examine mr bennett mr bennett's testimony did not how do we know that how in the world the way doc there was no reason for him to cross examine suppose he could have buried williams with his testimony well number one we could send it back to determine that but no no because i suggest that the judge cannot interrogate the lawyer about who is privileged banks is not a possibility it's may i may i suggest that if mr minix had never represented mr bennett we wouldn't you you would never know anything more and so if you just look at it  from wrong that the circumstances were different there that a witness was unconnected with the same drug conspiracy or the same conspiracy and the words the defendant and the witness were not in the same illegal pop so to speak somehow is some reason to think that everything that mr minix could have done was done ert that that everything that could have been challenged on him was a challenge i would like to point out that that and twenty seven that i think that might be sheep page twenty was the summary the argument and i don't believe that's where what she meant to go but i believe it might have been page twenty seven there's at the very end of the paragraph it says as discussed in more detail above it's a lot of double negatives as a very very poorly crafted sentence that said the evidence did not support a finding that tombes was only involved in a separate conspiracy unrelated to the overall conspiracy it's kind of poorly drafted what i what i wanted to convey in the brief and what i would like to convey to the courts here is that no question that that trial which involved many people who were doing you know all of whom were selling drugs and some fashion that there was a lot of evidence about different people dealing drugs on the sides no question and that is in that case there was a lot of drug deals being talked about by a lot of different parties but the evidence the fact that there was evidence of side deals or other drug deals going down did not rise to the level of evidence showing a multiple can smoke showing multiple conspiracies that the evidence very clearly implicated tombs in the donaldson conspiracy and i might add that this issue was not raised in the district court so that consideration will be under play an error standard of review so that you know the court would have to find that it was plain error not to have charge on multiple conspiracies and the evidence clearly does not support that and i might even the bottom line is the government did not in your view that government did not concede to separate conspiracies no no your honor it was not my intention the and i would also add that the suggested in mr toombs is brief that the district court had an obligation to spot to charge on multiple conspiracy and i would like to point out that that would have conflicted with the series of defense that the parties were offering mr williams there he was i didn't even know anything about drugs so he certainly wouldn't want to multiple conspiracy charge and mr change history was basically well i wouldn't me i wasn't doing drugs either so he wouldn't want a multiple conspiracy charge that would have been rather heavy handed for the district court to have taken it upon itself to charge on most conspirac your honor we eat up my right my our review of the record does not support it and their brief does not support a finding of an actual conflict flicked with adverse consequences in ok i'd just like to touch on the case the government has mentioned and it which is the only case cited in the government's brief on this issue stephen being new some which is in one thousand nine hundred five case that's actually in the context of a twenty two fifty four petition and i just want to note all the differences between that case and this one and stevenson counsel was not actively representing that witness at the time he testified that witness was not testifying for a benefit that witness did not implicate the defendant and it was not a conspiracy case counsel actually did cross examine this witness and i believe the court called the cross examination thorough and extensive and the defendant in that case could point to nothing else that counsel could have cross examined that conflict witness onset i think stevenson is a very different case and actually supports our position  and the fact that there's no case exactly on point at least recently is because as the old fifth circuit said and stevens this is just a situation that should never happen the conflict is so clear and to the extent that the government argues that we should send this back to the district court to determine if maybe mr williams had waived this conflict establishing the waiver is the government's burden so the fact that it's not on the record they can't go back and do it now it was their burden they clearly knew that there was at least a potential conflict here and no one put any sort of waiver on the record and finally i think it's disingenuous for the government to argue that this testimony was not to be used against mr williams when in fact they pointed to this testimony two different times in closing never said this applies to mr toombs only they asked the jury to use it against mr williams so that  indictment and no reversal is warranted even though the evidence at trial revolt reveals more than one conspiracy to the extent of the government is saying well this is just something we said in the summer even the argument isn't in artful use of the language i think they're confident in closing argument with the summary i guess what they're trying to cling to the court that what they say in the summary of their argument is not to be considered as a concession because it's not made in a body but they specifically is this in their closing argument which basically is a summary of what they argued on page twenty seven the government's whole premise in their response to mr jones allegation is that even though in essence we did prove more no one conspiracy it doesn't matter he wasn't prejudice because we believe that the evidence that we presented on the charts conduct was enough to establish a conspiracy that's the essence of their argument which really argument to that effect as far as mr too as mr tooke did not raise an argument regarding buyer seller he did in fact move for route twenty nine and at that point in time his basis for the rule twenty nine was that they had not proven in a conspiracy and just because there was some association betwe and there's been a structure that was not asked for and with regard to conspiracies i do believe it would have been because as i stated it was clear that counsel below was trying to establish in his rule twenty nine motion  that the only thing the government had proven at that point in time was that there was some association between the parties and that was not enough to amount to conspiracy he did not in fact argue that it was just merely a biased seller relationship that  was referring to was nothing more than them being biased the party's been in a bystander relationship or one of things i just want to quickly point out in the government's argument about the fact that they prove a conspiracy is that when you compare to the evidence that was he moved the powder form of the drugs my client the crack for him he sold the drugs out of his house and he was basically paid as a worker while the ms to donna says situation it was simply buyer seller were over two year period he bought drugs from him and no more than donaldson qualified and it's that until cations that my client filled orders for two of his customers mr rogers and i think mr flamingo but in any event is on clear whether or not that actually  this house awaited occurred at mr chiles house and he took time where he testified that he didn't sometimes he didn't like to work at night and he had mr jones and others go to grandma's house and take his place however when he didn't fact say your honor and document three twenty one page one sixty seven line twenty three he says that yes he testified that he had my client assisted now and then and when he did in fact then qualified by saying in the next line of page one six rogers and mr demetrius flores and i think what is more important than that then the fact that he started it is that in both of those occasions the court mr dols that my client chipped those two individuals to me that does not indicate that my client was part of a conspiracy if he is going to alienate customers of this potential conspiracy upset mr donaldson upset these two clients and just basically do a deal where he it's a lot of times i probably couldn't give a number because was he referring to your time was one of the players on the team at that time the just lot of modern languages that jury could reach me conclude be