at the end of the representation prior just prior to trial mr holloway that was virtually nonexistent we believe that the court the district  this case it's unusual that a trial counsel pursued that idea not only with the initial competency evaluation where he was declared competent then enlisted the help of a psychiatrist efforts to show him not to become confident was not only demonstrated the breakdown of communication to be essentially tribal council who doesn't requesting council have an obligation to present concerns of regarding competence to the court regardless of what the client first absolutely i think so so the fact that he pursued that doesn't show breakdown what what were they not able to communicate as i understand it  disagreed with respect to how to proceed in the case other than the evidence regarding competence at trial what we disagreed about with mr holloway wanted to challenge the government's evidence against him and challenge the actual facts to put the government to its verdict to show that he was guilty and to prove his innocence in that case well ok but on that issue the only real change he had would quibble was his state of mind the this was a white collar crime case and the documents showed that there were away after the june period when they entered a new trial order where there was a june twenty third trial order that said you know as for the case and one of the deadlines why it's motions including motions to withdraw had to be know about the new deadline so least he stuck with being told by the magistrate judge early in the case you better theirs or they had better go to december otherwise it's not going to happen now what do you do that's what he knew i think that that part of the remember factors that that is i would say neutral but because the he did was a before because of the breakdown in communications of the new deadline he didn't file a motion in advance of the new deadline you have to understand my point i do have that if anything i think it's neutral it could cut against mr holloway but i think the break there are communications which the motion to withdraw of shows  that it was over a fundamental directorates case what do we do about things in the record such as your client be difficult to work with on scheduling deciding these can only communicate in writing i mean is it fair to let him come in at the last minute and claim he should have had to counsel when it looks like he may have been gaming the system a little bit  these you know the delays he caused in the problems he caused with the communication where he didn't actually the trial wasn't the way he had requested that they get a continuance of the car well i mean i guess i'm talking about delays in the communications between him and his counsel i mean it's possible to say well gosh they didn't communicate that much but a lot of that was was your client's issue by not responding quickly by only agreeing to communicate certain ways by being not doing things himself and not advising his counsel that he was doing them i mean what do we do with those it's hard it's hard to blame his attorney for that isn't it relationship between them was acrimonious and they couldn't talk of the photo or they were just doing it by e mail so early i'm sure to please sir are you viewing the case more like it mccoy the louisiana kind of case where your you think your client have the authority to direct the case or or you know make a decision about the case that he was for clued in from doing i think yes to the extent pointed counsel he did try he did ok that's rodney mistake i thought he was chosen with hearing problem communicating with that other attorney it doesn't seem like there was any communication with that other attorney he attempted to want to speak to the  regarding the number instance of the sentence for the number of victims of the alleged fraud there were hundreds of investors but they didn't have individual counts did they they were there were several large groups to get it correct how many large groups were there there were more there were one of the largest groups are going to be sort of a little bit smaller for the largest for might not have lost but all these groups lost a lot of money that was clear wasn't it so how could any one investor not have been addicted well first the p s r actually not way that they've got to do enough wasn't enough though to show the loss by the four investment groups i don't because everyone invested to one of those four groups right they did but let's say one person in the group we're going to look to see whether the guideline range is just that would have been significant or not hoary following the lead for the united states supreme court as well that that's not the case that the prejudice under this kind of stripping claim as the guideline move itself but you still have show that if counsel had actually made this objection it would have changed something it would actually have resulted in a determination by the district court that there were not two hundred fifty victims in guinea get around that that this this would have been about objection that would be his verbs in the twenty to fifty five if you look at it by say that the first prong was strickland was because defense counsel did not put the government to its you're characterizing the claims here made by holloway that they say you have to object to everything well he's at least saying here that the problem  jurisdiction or chain of custody or the stipulated that the drugs were indeed the kind of drug that was alleged in the firm of the defense case the stipulated that all of the elements of the crime or mental so that they can then focus on the proposed affirmative defense and so strickland says and it does then we look at these cases under the circumstances of the individual case point that i'm trying to make is that there are a variety of circumstances under which defense counsel can reasonably and constitutional the court and the thrust of that pitch is he's a good guy he didn't mean to hurt those people who got in over his head if on the eve of sentencing he asked government to produce two hundred fifty plus victim stat sentencing judge it's perilous to stick your client out there for a large inhance went all right so while what you're saying may theoretically be true this really isn't the case for that i don't think i over fifteen million dollars in losses testimony that there were at least three hundred sixty three investors testimony that each of the four groups had lost a significant percentage of their money there were multiple witnesses who testified at trial of they money that eventually his investment strategy would pay off and that he turned a profit without regard to be investing the money not to be giving it back he couldn't have been simultaneously best you know of this money and giving it back to the people and he was giving some back he was giving some of it back in the media so there were at least shades of ponzi here right right but he says in an e mail that he's running a ponzi scheme to one of his insiders but the point here is that under the guideline that the word  is any a victim of somebody who suffered any part of that was in so if he's turning all this money back to his investment he's not going to be simultaneously giving them all of their money back and so they come back to your question james carson i agree with you in principle to come back to the your that this is a pretty significant guideline shift and if the evidence looks to council like it was going to change something that was really going to be valid then sure there there may be a circumstance  fish farms and purchase them into chronic you don't have to prove prejudice but the problem from a defendant such petitions and is that there's a higher dishful per undergarments chronic requires not just tension between counsel not just disagreement between of quote counsel failed to function in any meaningful sense as the government's adversarial this is why chronic says that in this context you don't have to prove prejudice because if you have this kind of claim there's no adversarial testing it makes sense to presume prejudice so on a communications plan the falls under product it's not enough to show disagreement with counsel there's no six minute right under the product cases to agree with your counsel about everything or or most things you have to show something beyond that you have to show that there was a quote complete breakdown in communications or a total breakdown in communications or are you saying that in a chronic case as as long as there's yes and here's why it's because of mccoy mccoy says the counsel in the event gets to decide the objective and then the council gets to decide how to get there that's the strategy part there's no requirement of a product that the defendant agree with substance of discussion about how council has different options and they can choose it so if mr holloway here to bring it back to this case had wanted to claim my counsel strategy is chosen strategy as objective and reasonable that would have been a strict strategy he's got to show quote a complete breakdown in communication that prevented the preparation of a meaningful defense it's a different kind of claim than just simply pointing to a strategy  evidence or is it your position that you just had no burden to go to the receiver at all i would say government in the prosecutor that was working with the receiver purportedly do you know if there is there any evidence that the prosecution team went to the receiver to find out if there was a exculpatory evidence that might be provided to the defendant i'm not aware of anything on the that plane would be under the discovery rules under the rules of criminal procedure he's got access under the rules of criminal procedure to find out what it is the government has what he doesn't have the ability to do is turn it into a brady clan i mean this is the point of  of the british mr holloway discovered that they were he was given some things from the receiver during the course of the discovery process he was getting some documents from the receiver and those were the things about which the receiver testified at trial and that he provided information to the prosecution team what he didn't know he'd heard of this when he was dealing with the restitution issue after trying the civil case is that they were actually recording him with his counsel that were listed on the receiver affidavit for fees and so that's why this came up after trial as opposed to before i think it gave everyone assume that the prosecution had turned