counsel i think that's apparent in the record that's fair that relates to maintaining his innocence and adulation of the trial that led to a certain lawyers withdrawing at the trial court level and eventually that trial or that decision and up him going to trial and i just wondered whether we have enough of a record though right now to decide whether the lawyer did something contrary to what the client i know you say it's not an ineffective assistance claim but that doesn't mean we still might not have a record that we need to resolve that in which case you would maybe need the collateral proceeding for an north carolina decision that cited in my reply brief for that being the appropriate remedy and the in these circumstances now there's not much federal case law on this because the mccoy decision is recent and so i can't  least you know i get that if you look at state courts you know oftentimes what happens is you have no guarantee that it's ever going back to the same judge unless you really man but of course in our system you know post conviction relief measures are filed in front of the same judge you know and it's a constitutional question with an inadequate record in our history is we kind of send those kinds of questions back to be resolved in the twenty dollars to fifty five dollars proceeding you know and it would seem unusual to me that without some motion or some error on the part of the court for failing to make inquiry that we would send it back to the trial court just sort of as a direct and why is it preferable to send it back as a directory man yeah that's a good question judge erickson and i'll tell you my concerns are not going to there's been some court cases out there that was say in a twenty to fifty five proceed in harmless error would apply  district court would have been aware of that other than what i would say that i think that the trial court has or the district court has an obligation to please of guilty and when it comes to structural error fundamental structural error a trial court has some obligation to ensure that there are the trial process is being handled fairly yeah and so you're all you're one hundred percent right judge t figure that out much the three of us if we get to that point at some point my st question sort of on the issue sort of the big over zero arching question is this your client takes the stand your client testifies it testifies to each of these central elements of the claim that's really a much less claim and you know the acquittal gods would shine in your case if you get the conviction on just that piece and you you get an acquittal on the other p why after your client's actually admitted all the essential elements of the offense why why is it why is it still a mccoy air they can get yours and that's a good question and i'm glad you're asking these because these are all things i was going to highlight in my remember garlits do they are very important questions and they may help resolve the us i would simply assume that just because a client and that's the factual elements of something that does not mean that they want to be found guilty for something and this court is aware of happens all the adult you know those types of arguments are made all the time but those people still have the same fundamental rights too to be found guilty by a by a jury of the same structural analysis rights apply the same is true here i'm not bringing  sufficiency of the evidence claim i'm not asking the court to do that i'm not saying that there wasn't evidence i don't think that's pertinent to the mccoy rationale question here i think that in his mind this kind of what i would call  my client would have had to object to this after the trial was a sentencing because of this was done and unlike mccoy where the opening statements of the case the trial coun l specifically made a concession of guilt in this case it never happened until the closing argument there was no concession of go and tell the closing argument where i only have two weeks well he  of counsel claim to i think that the trial counsel in this case would have had similar conflicts of issue or have you raise those issues on behalf of your clients when they've asked you to me personally i just think about it i mean i'm just saying when you defend cases when they say i think you're in fact if you don't you bring that before the court i mean you did i mean i'm not sure that i think that and i'm not sure i've ever had a client who came to me specifically and used the terms and effect the district court case out of new york all bob but on my reply i'll bring up the citation for the court cited in your brief it's not that it came out after all why don't you send us a letter under rule twenty eight dollars j of the rules of procedure with the and admitting guilt at trial and the holding of nixon was that in the latter case conceding guilt at trial there was no requirement to gain the express consent of the client decision is how that was described in nixon now mcqueary comes along also off authored by justice ginsburg and there's a limitation on that and that is that when there are express objections by the defendant those cannot be overruled by the attorney were guarding a concession of guilt so my view in my view the essential holding of mccoy is that in order to place a case within the realm of structural air rather than nixon and strickland an ineffective assistance the defendant must explicitly protest the concession strategy adopted by the attorney on the record there are other ways to distinguish mccoy  but you know i would agree it should be tethered to his facts to its facts like justice alito says but i think that's the critical holding here so what you're saying when you say on the record we just need another proceeding to get that record well i think in order for this court to consider mccoy yes the only possible way would be another proceeding but the only way mccoy is implicated is if you if there is a record that there are express objections by the client and there is zero evidence of that in fact the record is absolutely to the contrary you know there were two counts here there was the large conspiracy count and then there was count two specific possession with intent to distribute fifty grams of meth and it's clear from the very beginning that the strategy here between client and attorney is to admit to the one hundred and four grams the four ounces that were in his pocket when he was taken down that he was talking about on the phone that they pulled out and he admitted to law enforcement he had and was going to distribute to mr ventura as was recorded you used the term distributed but i think their son some merit to the thought that a client who gets on the stand in this and is describing what happened is trying maybe just trying to describe to the jury why it isn't the offense that he's been charged with and so we sort of say well you you admitted these elements it's distribution but not sure if you look at it from the eyes of the client that it's necessarily the case well over from the eyes of the law it as well but but here we're talking about whether or not there was a joint agreement between lawyer and client that he would be admitting guilt to a particular offense so whether or not it's in the eyes of law that may very well be true but it seems to me that it supports your conclusion that you need a record because it could very well be that the client thought that what he was doing was explaining away  what he had done and eking out from under a conviction and there's a little different there doesn't have to be a joint agreement to make the concession if if there is no agreement you don't need the  mccoy is implicated is if there are express objections there are overruled by the attorney and that would be the record tonight i used your joint agreement that the phrase that you had used in response so i think you're right but i do have to distort about this idea that well go ahead i just have to disagree with my friend about that this wasn't apparent from the very beginning the opening statement is filled with a preview of the strategy the defense attorney admits that he had the math that he had that he says i'm not go tell you my client didn't commit a crime i'm here to say they didn't prove this big conspiracy and after that happened miss the client was there and he could have said the next time the jury's out of the room wait a minute i never agreed to that he didn't do that he didn't do that because he was in on it and that's appear that's apparent from the testimony where he testifies the questioning the very questioning by mr butler the defense attorney to foolishly on a sotto is intended to draw out the fact that he's admitting he had the four ounces and was going to give it to mr ventura and in fact he complains on the stand his real complaint is why does this have to be a federal charge i was on i only had four ounces this should be a state charge that's what he said he said that in front of the jury and he's it mid ing the the all the relevant factors of guilt and then you know of obviously when closing argument comes along the attorney is going to fulfill the strategy he previewed in opening statement and then he elaborated on with his client on the stand he said of course yeah he had the four ounces so it is your argument essentially that there is insufficient evidence in this record to raise the mccoy question for our consideration in any event absolutely mccoy is absolutely not implicated by this record whatsoever and so the only thing that could happen is that they could the client could eventually bring a twenty dollars to fifty five dollars and that's course there's only there are three  counsel's concession of the defendant's guilt on kidnapping and domestic violence charges in an overall drug conspiracy case did not implicate mccall i did not violate the th amendment because there was no express statement of the client's will to maintain his innocence on those charges and the court noted you're free to file a two thousand two hundred and fifty five petition if you want to the th circuit also has applied mccoy united states vs conn came out on the same day april twenty five of this year there they held mccoy was an implicated because the defendant had agreed to plead guilty and was saying he mccoy was violated by the timing of that plea so mcquay wasn't relevant that the case that's a little contrary is the th circuit united states versus reed which came out in march and in that case the th circuit actually held that permitting a defense counsel to present an insanity defense over the defendant's clear objections which were on the record in that case i don't want to plead not presenting a defense you know presenting a defense is a concession of guilt and well you have to admit that you committed all the acts and order to raise the insanity defense right so you've essentially admitted every single bit of the offense charge except the state of mind element right well but you're saying you're not guilty it's a defense so it's not a concession of of of guilt in this case i think did i hear correctly that the defendant spoke only spanish for the most part yes so when you're saying he's telling the jury this is all through the translator through translator translator at every point you know he he spoke on the record there's no issue with translation course he doesn't object after opening statement the concessions were made he doesn't jack throughout the trial he admits he's guilty factually in his own testimony he doesn't object after opening statement any time throughout that he could have he doesn't make a motion for a new trial at sentencing he doesn't do object at all he spoke for an hour over an hour at sentencing told the story of his life never said i didn't possess math with intent to distribute never said i objected to that anywhere or even not not under oath that i didn't agree with the strategy he has ever said it other than and i don't i'm not sure it's even in the appellate briefs that he didn't agree with the strategy he just is making the mccoy argument what about this concern different i don't therefore we should cause the district court to take it up in the in the original case through a remailer that was his argument i don't think the law is different in structural error i don't think the venue matters for a structural argument the question is what the law is here's here's and he i'm sort here's the argument apparently that somehow some magical transmogrification it takes place between the direct appeal and the twenty to fifty five where a structural error becomes  nonstructural air which some district court apparently in new york has said i want to read back case because i'd like to know what the what the sort of wizardry that takes place that takes structural or makes it nonstructural because that  twist my brain in a way i've never really gone before but without having read it i can't i can't figure out why they got there that's wrong a court can grant a structural air in a twenty to fifty five is my view it is do you know of any way that the law could change that if something that would constitute a structural error under rect appeal would become a non structural error in collateral review i don't know i don't think mccoy would apply and in any event i think strickland it would still be a structural error which would wipe out the prejudice prong right isn't that true if i missed something here yet i've been decided things wrong for the last twenty five years no no i think  from a court to apply in a twenty to fifty five i think it still wouldn't apply under the strict holding of mccoy because there never was an express objection on the record i think that's inherent in mccoy and i don't think this court can go further than mccoy did in carving out a limitation on on the holding of nixon so i don't think it would be a successful mccoy argument in a twenty dollars to fifty five dollars proceeding but if the court found that it was a mcquay violation in a dollars to fifty five dollars proceeding it could certainly grant relief just on the obstruction charge i want to clarify something in the briefing the suggestion is that the obstruction doesn't apply because there was no finding that even though the court found that it was inaccurate or false there was no finding that it was knowingly false that's just not so i mean judge schreier said this is a bald faced liar you just spewed out a series of bal faced lies both during trial under oath and at sentencing and she went over story specific instances and in those instances she says i found your their testimony the witnesses to be believable believable and the defend testimony to be untruthful that's not just inaccurate that's a lie there's a seinfeld episode where george who stands is trying to coach jerry on taking a polygraph and he says remember it's not a lie if you believe it but if you don't believe it is a lie and the judge said you're a liar these are live so the knowing element that's there's no argument on that and then finally on substantive a procedure on some sort of reasonable ness there's two arguments one is the court didn't go through all three hundred and fifty five s of course we're here to play an error and you look at the whole proceeding to see if she understood the factors and i mean the briefing does not go into any factor that says she should have looked at because she really did i mean if you're looking in under the statute the nature and circumstances of the offense she's clearly considered that she considered the history and characteristics of the defended she rejected a variance based on his criminal history the defendant told his entire life story at the trial and and  she certainly considered all of that she looked at the seriousness of the offense and she focused for a lot on his lying and his obstruction of justice of justice and his lack of remorse that goes to promoting respect for the law what what is that adequate deterrence protecting the public from further klopp crimes he has no remorse she looked at the kind of sentences available she made all the guideline weighings and findings she said there's a mandatory minimum he's not eligible for probation she looked at the sentencing range that's a factor for she looked at whether he needed treatment or vocational training on page thirty six you ordered him to do cognitive behavioral training she looked at whether there was any pertinent policy statement there is none and they have pointed to any she should have looked at so that's not something that that needed to be specifically addressed and of course she addressed restitution the seven factor she said there's no need for restitution not been requested so even though she didn't say here's everything was addressed she covered all the bases this is a well considered sentence and there's no air here we ask you a firm very well thank you for your argument mr bell will hear from you  the trial court judge or the dischord judge considered all this into i cut and paste the entirety of the quality that the court had in the brief but if the court wants to look at the transcript it's not that long i would simply state  st you know and i would i mean i'll just read one sentence of the case that i was referring to the supreme court's know how over the course employed different standard for evaluating structural error depending on whether it's raised on direct structural error issue the question is whether subject a harmless error analysis or not with us on collateral view in comparison to direct review and the basis for that is the quote unquote high cost of society for using a view rather than using it on direct review i mean there's the in alice is that what it says but i think it would be you know i believe that is why the north carolina supreme court and thomas has a doctor the procedure that if there are factual underlines here for remain on on direct analysis they've adopted procedures to ensure quite frankly that district coursed don't get into the situation s and there's an affirmative obligation on trial counsel defense counsel to ask for a consent from the client and and if they remain silent then you can move forward but it's not no obligation on the defendant defendant to affirmatively object on the record