it please the court counsel my name is wade fisher i am c j panel attorney for christopher of lamont bradshaw mr bradshaw is appealing his convictions for conspiracy to distribute controlled substance retained counsel to appear was a violation of his th amendment right against choice of counsel and thus structural error regarding requiring automatic reversal secondarily  is whether there was sufficient evidence to convict mr bradshaw at trial the st argument that mr bradshaw solicits is that his right to counsel of choice was violated as a result of judge langston i'll numerous motions to request of pointed counsel they were here on and they were part of their obviously part of the case management issue for the district court but they're not issue an appeal no no the st four were granted while i was i believe the case was seven months that i represented mr bradshaw he was in custody portion of the time he was out of custody portion of the time i believe he came back into custody and sometime in may there counsel of this choice but he was not denied the counsel of this choice not at that the district court said no i'm not going to allow retained counsel to try this and so i wonder whether the real issue here is whether was just abuse of discretion to grant the continuance and there's really no constitutional issue and if that's his argument is that judge lang abuse discussion by denying that continuance i was unaware that there was other counsel in the background until september  th i believe carpers motion that was filed indicated that she had had contact with he or the and or the family sometime around august th i was unaware of that we had argued a suppression motion suppression motion came back i believe i think judge marino issued an opinion a record report recommendation on the september and then ultimately that was adopted on the th of september by judge lang that ironically is about the continuance counsel was denied his bringing his newly retained counsel because it was on not filed within because it was filed too soon with did it too close to the trial that was judge l reasoning as is what makes what says that's unconstitutional what case it was the fact that he had he was indigent up until the point in time where he was able to retain counsel i understand all that but he had it he had written yet effective appointed counsel and he didn't make the made no attempt to show that there was a breakdown in the relationship and so what we have is new counsel making an untimely appearance and asking for the th continuance i don't see where this is a constitutional issue i what makes it constitutional the fact that the fact that he he was able to retain counsel of his own choice and upon doing so it's his constitutional right carper to prepare as he has retained counsel suppose this happened on the morning of trial and he comes in and he says you know i just retained counsel an hour ago and i want to delay the trial and the district judge has not we're ready to go i you know i cleared my trial counsel you can't tell me an hour in advance i mean what's really the difference between five days before an hour i don't think you'd be arguing that was a denial of try to counsel that app an hour before but maybe you would be and in that hypothetical your honor i i don't know what the that is going to invent the twinkie defense he indicated he wouldn't consider the twinkie defense an invention of a competent lawyer so it doesn't matter whether he had competent lawyer available to him at the time it was the fact that don't know that there's any case that indicates that he was denied now counsel might know where where the same scenario and the court said you may retain new counsel but i'm not granting a continuance and the trial or appellate court held that was a unconstitutional denial of chosen counsel even know this because d facto counsel wasn't ready to try that or did three days later i don't think there is one way and i was unable to find one euro and so that's that's kind of our new our new ground here it would be your honor you know from from mr bradshaw saying run with are going to pardon me sir nothing wrong with arguing new issues this make it would be a new issue from mr bradshaw retain counsel he agrees with i believe we need that as someone who is indigent doesn't have a choice of counsel per se but that once he was able to or his family was able to hire counsel that that he was no longer indigent and that he did at that point have the right to choose his own counsel can i ask you about the sufficiency evidence i think you have  relatively strong i don't know if it's a winning argument but a relatively strong argument on the on the possession charge and in particular whether the driver image the driver can be responsible for something that the passenger possessed and we don't know if it was on his person if it was in the car we don't know that but what i want to ask you is the jury was also instructed on aiding and abetting liability and i did not see the parties brief that but doesn't that provide an independent ground for affirming on the possession charge and there was argument to that during the settling of the jury instructions your honor  the government's contention was it was constructive receipt that he based on all the circumstances that he had to be aware of what was in mr foster's pocket or on mr foster's person during during a t it was a there was a government's contention that mr foster had run back to the car in order to get the methamphetamine or the cash from the car  there was there was discrepancies in the government's view of whether the glove box was open or closed at the time that the st officer hit looked in the window it was clear that the glove box had been closed it was very government indicated that the glove box had been shot well at the time i just tell you what my concern is if you know as a parent if i'm driving around one of my kids friends and i don't think my kids are involved in any kind of drug drug stuff but suppose one of the other kids in the car has drugs on their person and maybe they reach back in for their backpack or something like that they right now here we've got and the mascot aiding and abetting liability i find it hard to believe that i can be held liable and tried for possession when when when it's on the person of o of my kid's friends but on aiding and abetting liability you now have assistance you have him being the driver you have them fleeing together all of that i think comes into play when you're talking about aiding and abetting liability so i guess i'm asking you what if it's lynch on appeal the aiding and abetting instruction so why does why isn't this charge fine under aiding and abetting liability and that was the government's argument the government's argument was constructive possession he had to know what that was what what mr even beyond constructive possession even if you assume your client you know the passenger had possession of it and you didn't your client did not i still think that you have a problem under aiding and abetting liability i don't know that that's the case because there was no evidence by anyone that mr bradshaw i had been around had other than being in a similar location everyone that testified with the exception of weapons whose crypt testimony was less than credible from our our point of view indicated that that he mr bradshaw was not even present the rooms where the methamphetamine was was distributed it never received money we're talking about the st the the whipple by that and the red bulls and whipple testified that he had seen foster and your client in honor he i asked an answer asking numerous times whether or not he had received methamphetamine from mr bradshaw he indicated no it was after the rd time that the government got up recross and he believed he was still under pressure to do provide information i want to reserve the balance of my time mr fisher we note that you were appointed on appeal is under the criminal justice act and the court appreciate your your last question about mr weapons testimony regarding the direct deal with mr bradshaw i think the testimony was that occurred post arrest what happened as mr bradshaw was arrested on state charges livery or when he test when he does when he said this they the delivery was post arrest so mr bradshaw was arrested on state charges was released and then the testimony was that he another deal on hand to hand drug dealing which mr bradshaw was identified as being the driver of the vehicle seven grams that happened before the search warrant and served as a basis for the search warrant counsel do we need to be concerned about the agenda  confidential informant or is it public it's public in that his name was used during the trial i think in the government's brief we've called him cia but i guess i would ask that in the course of opinion you know the way it was charge of the indictment we back went back and look at this specific to the day in which the chase happened and they ran into the fence and all that and so you have to prove possession on that that you can't prove possession with any of the deals with and so make me feel better given the hypothetical i just gave you were one of my kids friends is in my car and i'm charged even though i had no idea they had drugs on them you know right in the sense your honor that it's we're talking about the ninety eight grams about you know what if i got a friend of the car he's got a backpack full of contraband instruction itself in aiding abetting liability depends on your knowledge that's proof circumstantially and i'd still have to defend the charge under your theory well that's possible but the only he was knowledgeable and involved in the drug enterprise including that that day in and those drugs this case is like in very critical ways the cases in which this quote is encountered mere presence successful mere presence defense where you have an unknowing on waiting interstate of drugs who was driving a vehicle down interstate would still be sliced what specific facts lead to accomplice liability i arizona with no discernible ties to the area the codefendant apparently had some ties to the arab but what's he doing this is an interstate where people from all over the country are driving around this much the most rude part of the country south of highway eighteen and todd county  out on gravel roads meeting up with the confidential informant late at night his car is identified no question that it's his car identified by multiple individuals as being  gave foster money and then the two left together to go get drugs came back with drugs so it's not just that he was present when another person is dealing drugs he's fetching drugs with with another  person then we have you know him hanging out and even staying at this drug house the evidence from the search warrant at the house shows there's paraphernalia all over the place there's baggies were drugs apparently been emptied out in the toilet in the room that he was identified as staying in there was paraphernalia there were baggies there were all sorts of contraband and then of course we do have the testimony of the confidential informant in the post  certainly facts from which they can infer that this is a guy involved in this drug operation on that day in question with the ninety eight grams being thrown and having access to methamphetamine fraud it shows i think that later evidence shows that he wasn't there by mistake exactly he was there because he was helping with what the drug deal biggs exactly and that's it this is much different than two men traveling down a highway in a car that they didn't own with a  mr foster are we sure that you reach back in for the sack or is that just an inference that it's an inference at that point i mean i guess what i would add about that is at the very least we know he came back to get something that he didn't want to leave in the car  then when you see the photographs of the size of the bag of of math i guess the very best telling of it was that this was in his sweat pants pocket all along in the car i say that because again we're in a much different place than where we have a welded shut bag space in a in a corner vehicle at best they were in the car at that moment with a large bag of math in his passenger sweat pants pocket but certainly the jury that what he went back for was the drugs i agree with the questions at the court has asked with respect to the right of counsel of choice and whether this is even motions to continue and it involves everything from you know the court had stacked up a number of trials that week and as the court notes that there had been discussion with counsel in the end the court had been assured that mr bradshaw wanted to go to directly in line with those cases that hold that a district court did not abuse its wide discretion in controlling its calendar by denying a th hour motion to continue i have additional time i'd be happy to answer any more questions and if not i'll take my seat thank you thank you to address the government's comments regarding the scheduling yes it was true that judge lang did move off based on prior information that mr told that he would automatically get a new trial date once he was appointed or once he was allowed to have his counsel of choice but his contention would be what harm would it have band of the district court to move that trial to another date to give that retained counsel ability to prepare adequately in regards to the defendant running from the vehicle  brief is replete with not one officer could testify that they identify themselves as law enforce the majority of them identified that they were in fact in an unmarked vehicle no lights no sirens it was broad daylight but we're out in the middle of nowhere from the defendant's perspective a bunch of dodge pickup and other s u v type vehicles come rolling man and he's blocked in he was scared  in regards to mr mullard testimony and all the drugs that were found in that home his home he agreed that he speculated and it was speculation on his part that bradshaw had to know what was going on and the court even