morning your honor my name is john kelly i represent the appellant frank low back i represented frank low back on his initial direct appeal to this court i was representing dr lo back at his sentencing in a district court but after his conviction and i was not trial counsel so our point here your honor is based on the trial counsel's failure to move to sever the what i'll call the tax counts from the health care accounts and his failure to even discuss that issue with the defendant the facts which are not really in dispute constituted ineffective assistance of that doesn't that tell us something well it tells us that this may be a case where it's appropriate the only case or the closest case that i found was the tippins case and we cited that in our brief in that case  the court found per se prejudice per se ineffectiveness because the defense counsel had slept through some substantial parts of the trial in that case however nobody pointed to any this come close to the us well it's the case where counsels not even admitted is interesting your honor because it may have been a person who rented perfectly effective and in fantastic representation but yet the court looked at it and said if he's not admitted we're not going to look to see how effective he performed or we're just going to say it's per se what i'm saying here is if you combine what i think was a garden variety motion for severance that should have been made in a district court the fact that it wasn't made really did prejudice the defendant because it enabled the government to pile on the charges to make arguments to the jury based on propensity greed to use one set of charges to prove the other set of charges there was absolutely no cautionary instruction given none was requested either by the government or by the fence counsel and so you have a situation where i think it if you add it all up i think it does come to pushes into the per se or what could be considered per se it's not terribly unlike the case in tippins granted there the defense lawyer slept but no one said in tippins that he failed to object properly that he failed to make a dance arguments properly they just said you can't have a defense lawyer sleeping substantially or a lot during the course of a trial and i understand and appreciate that my point here is in comparison to tippens there was a council here a trial counsel was asleep on this one i think it was a very significant issue and it set the table for the whole trial because these two different types of charges had a motion for severance been made would not have been able to be tried together they were clearly miss mean can you articulate a basis for finding prejudice and standard strictly analysis yes your honor i mean here you have a situation where i think if we start from the of the premise that this court's decisions and help or shell of and pretty much are identical here in the sense that those two types are different types of charges should not be tried together if there is a motion and the reason why they shouldn't be tried together is because there's an inherent prejudice in piling on charges on a defendant and in this particular case it allowed the government to make certain arguments that they otherwise wouldn't have been able to make and if you and we've cited some of those examples in our main brief where the government argued during some asian various points that  in another it doesn't undercut prejudice in the sense that the reason why the district court perhaps concluded that the evidence was overwhelming was because all of the charges were put together and as one might argue under those circumstances it could have been conceived by the district judge to be overwhelming but had there been a severance the entire complection of both trials would have been different but mr low back may not have even had to testify because there was conflict  evidence regarding the health care fraud there were people who said that his children and his wife did receive treatment there was a testimony that the doctor had dr sharon had in fact provided some services or some medical treatment of the shadow offs so there was a conflict in the evidence and with respect to the tax charges there also was was conflict there was testimony about that so dr lo back may not have even had to testify either trial and so i think the whole complection of the case and the presentation of the case very well may have been different if you just said either trials of the alternative would have been to trial right a lot of defendants might prefer to have one trial so if the defendant said to his lawyer i know you're thinking about making a severance motion but i think i don't i want to do this once and i want to do this twice it would be the lowest objective the stand reasonable standard of course if the defendant and trial counsel had discussed the wisdom of proceeding one way or the other and the defendant had said i only want to do one trial well that that's a whole different case but that didn't happen here so when you combine what to me was a fundamental failure to move for a severance as the law in this case in the circuit dealt with these types of separate and distinct charges and not to discuss that with the defendant just pushes this forward and i think in that regard it it very well might be per se effectiveness given all the trials would have been different your honor so let's take the health care trial there was evidence in the health care trial that the billings were legitimate there was evidence in the health care trial that some of the errors may have been office mistakes and  been admissible under four hundred four being one trial and the other because that would undermine the whole sense of the rationale behind the decisions and help or shell if and let walk if that were the case then those decisions that if you look at each case separately iran or there was evidence that the government argued and could have argued prove the defendant's guilt there was also evidence that the defendant could have argued and did argue that he would have been innocent but the whole comple of the case it would have been a different trial and you know they make a point of saying dr low back testified he could have been cross examined but there's nothing to say that dr low back would have been required to testify had there been separate trials i see my lights on your good morning honors and may it please the court my name is matthew and i represent the united states in this twenty three fifty five appeal the district court's judgment should be affirmed in this case because trial counsel's performance was well above the constitutional standard and the appellate has failed to come close to establishing that there was per se prejudice in his performance the very nature of the other per se cases decided in this circuit compel to the conclusion that the judge's decision was correct per se ineffectiveness means essentially assistance that is so on qualified or so hopelessly conflicted or so absent that it is akin to not having a lawyer at trial at all it's a category that indicates an attorney whose performance is so incurably deficient that the proceeding is in some way structurally impaired and any resulting verdict  a narrowly defined category and for good reason the appellant here seeks to expand it to include what is frequently a strategic decision by counsel and counsel made this motion you suggesting that there's a chance it would have been denied the seven's motion i'm not suggesting that your honor the district the district judge also suggested that and cited a number of reasons why severance may not have been warranted there was a to the defendant's medical practice for both the pension fraud count i know that and so i'm not sure what to make of your saying you're not arguing it so you you're not defending the district court's characterization of the hypothetical severance motion up or turn of phrase by me your honor i apologize it's not just me arguing that your honor it's also the district judges of you who tried the case and we sort of know the counterfactual had this motion been presented to him his view looking back in hindsight obviously was that he would likely not have granted that motion and he cites a number of reasons in his opinion as to why that was the  case the precedent on per se in this circuit is clear that the ineffectiveness must be akin to egregiousness for example counsel was never licensed to practice ever or had never met the substantive requirements to become licensed in the novak and selena cases essentially a defendant is represented at trial by someone who's masquerading as an attorney in the cancel a case an example where the counsel was potentially a co participant in the crimes charged a hopeless incurable conflict in the tippins case in which counsel was asleep for critical portions of the trial essentially during those portions of the trial this court observed we don't know what we cannot know what would have happened because the client was fundamentally without counsel it's insufficient to say that we can't point to a specific thing that might have happened had counsel been awake because we don't know what the client could have done what questions the client might have asked the client was essentially at sea at trial the reason that those cases hang together is that they demonstrate a situation in which the government's case is fundamentally not subjected to meaningful adversarial testing whether by a lack of skill or a lack of motive or simply lack of consciousness in the tippens case and there are many cases that present more favorable facts i would submit appellant as compared to this palace in which this court said that's not per se prejudice in her old guerrero the attorney had been suspended from that from practice in that district court but he was admitted to qualify to practice elsewhere and there was no question he was not substantively qualified this court held not per se prejudice in keizer a diff client excuse me a counsel had not been  ha to the court in which he was practicing and this court said if there substantively qualified that's a technical defect that's not per se prejudice in aiello counsel was under investigation for unrelated offenses in a different district this court held not per se prejudice in one case a counsel suffered a stroke during trial the trial was delayed a substitute counsel came in and delivered a summation and this court held we're go review that for whether it was substantively effective performance but we're not going to say that was per se prejudice this set of facts does not approach even those cases that this court rejected and so this may not have been admitted or a lawyer had a stroke and another lawyer had had to come in there was no question but those lawyers performed capably and effectively and so it was not surprising that under those circumstances there was no finding of per se ineffectiveness but here i think the fact that he failure to make this elemental motion and the fact that he did not discuss with his client the wisdom or lack of wisdom to make that motion i think elevates this case and just in passing the suggestion that there might have been strategic reasons for this to happen or to not to make the motion none of the reason set forth strategic so called strategic reasons given in hindsight where it said mid that no one had even considered it up front none of those reasons put forth make sense i mean one of the reason defense counsel trial counsel said in his affirmation was that i may have given the government more time to investigate the case but here the government had already been investigating the case for a couple of years and it was unlikely that giving them another six months or whatever was going to change any dynamic it was just