the last case on for argument today is lopez versus united states there you go you're going to get the briefs are lengthy but i will try to focus on three very specific points the st relating to the per se conflict that appellate believes occurred the nd relating to the actual conflict that the occurred and the rd it relating to the eileen error which the defendant believes occurred with respect to the per se conflict this is a conflict that is extraordinary your honour's defense counsel at the time trial counsel cannot be viewed as being free from rick seaney free from fear that a very vigorous defense should be the prosecutor or judge just gover that the evidence and the evidence of the attorney's o wrongdoing but it doesn't have to be implicated in the defendant's own crimes isn't that know your are able create it in the same or closely related crimes so same crimes would of course be the indictment at issue right crow closely related would be quaint that a defense lawyer and his client in contacting a witness was potentially guilty of obstruction by your definition those would all be personal conflicts correct any time the government believes that there was a law is the classic one right so you're urging us who need time is a possibility obstruction that lawyer there would be a reversal of the conviction automatically if if there was that possibility out there that nobody knew about right complication that obviously judge chin said it was problematic which i agree with that the conduct but it's not under the ethical rules the of the rules are for it's to pain for the outcome or for the content of the testimony and we don't have either of those things here right  and it was it was paid for the evidence was paid for when already existed you didn't have the person go make the evidence you just said i want evans i want to pay for who's ever been charged for traction that you're aware of that you're i don't think it's entirely clear from the record at what point the evidence was created but certainly and here i can say i can certainly say that there has been recent events recent prosecutions where a defendant was obstructing justice and the indictment was  that the attorney is necessarily then to be concerned about his all the disk government discovering his own criminality right isn't that the theory of why but here the defense where it wasn't hiding it in the record he told the government i have these tapes you should dismiss the indictment or negotiate a plea so it was the exact opposite that he wasn't concerned he brought it to the government's attention that he had done this right you are and strangely the got neither the in the government nor the defense attorney brought it to the defense attention  that was a conflict no in fact the defense attorney told the defendant the exact opposite the defense attorney said it's lawful for me to do this which is absurd your honor why the government didn't raise it as a conflict i don't know at the very least your honor at the very least because i know i only have certain amount of time at the very least it's an actual conflict ok but if it's an actual conflict and i don't eat up all your time but what how did it how would you say it affected his performance to see about cooperation but there is no indication the government  interested in your client's cooperation and again he wasn't hiding this to begin with so i don't know where what we would conclude that this hinders cooperation potential cooperation and we don't know whether or not there was success when it comes to sentencing here the defense attorney had an interest in avoiding that in avoiding that sort of offense attorney doesn't even bring that up with that if it doesn't make that a possibility for him because he knows if the defendant is going to  cooperate the st thing he would have to do is explain everything that he has done that's wrongful which would include the conduct of this it defense attorney so that their interest right there divert right there and if it was even a possibility  disclosing this something here in the schools i just honestly in i don't follow the logic in that or the school osing that what he's done is unlawful he's not a school thing that's that's the problem here and he's committed it he's committed arguably a crime and has told  defendant that it's perfectly ok what i've done then he said to the defendant you know what we're going to do we're going to go to trial because i'm not he by the way he doesn't tell the defendant how bad the evidence is he tells the defendant that he's got a chance of success at trial so he gives them a m a misrepresentation of what his chances are success at trial and he's doing all this knowing full well that the one thing he wants to avoid is the defendant getting in his head that cooperation might help him to cry and proclaim his innocence at the informed of what cooperated benefits can give defendants take positions which may or may not be true on all the time i do a lot of capital defense as your honor knows on a regular basis my clients tell me i did not do it i hear that actually at the beginning of them of the representation of both almost every case i have capital and non capital that doesn't mean they didn't do it that just means that's the position they're taking at that time and when facts get shown to them that get them to be a little more honest with and more honest with the court they change their position i remember once having a client say to maim mr brock i didn't commit this robbery there's no way i did it when i show the defendant a photograph from the surveillance video anywhere maybe i should say want to overturn a conviction based upon the idea that he might have cooperated in as no i was the government one is cooperation and he might have pled guilty even always claimed his innocence there's nothing in the record to indicate you were listening there's also your honor i want you to overturn a conviction because there was nothing in the record to suggest that there was even a curse you know effected anything that happened that's really what this is about well your honor he was advised to go to trial he created under reason why expectation of success he didn't pursue in good faith a plea deal and he conscripted the defendant into obstruction of justice or perfectly fine as to the latter point that you just made that he was he conscripted the defendant how did that occur he went to the to do the thing and he demanded money from the defendant all right he then  wrong to have done so for two reasons the st is that summary opinions in this court are not presidential in this court's own rules make that very clear on top of that the minutes case itself did not identify the principle case at issue from this court which is united states versus martina's in and evaluate whether or not martinez is implicated in any way by the eileen decision now martinez stated that for a defendant to be found kilograms of cocaine but to find the defendant liable for those five filk organs of cocaine it has to be reasonable foreseeable at the time martinez of course a judge can make that decision are reasonable for see ability however eile itself waived because the government made a complete opposite procedural argument in the district court which was not that it was defaulted but that it was that eileen was not retroactive and that these that the they were arguing that the case was already complete before i let it come down on the island could it be applied the government then has now changed their procedure argument on appeal but you can't do that in the united states versus a lot of you can't take opposed procedural positions  on the conspiracy count but on the substantive count found that the defendant only only was and only commit an offense relating five hundred grams or more so i understand what the government's arguments were at sentencing for reason foreseeability that's not what the jury reasons st as the district court held lopez did not receive ineffective assistance of counsel at trial and secondly he is not entitled to a new sentence under a wing and as such the district court probably denied the motion and the affirm that decision i'll turn st to the per se conflict issue that mr rock rock raised as your honor pointed out there's no evidence here that in the record to support any conclusion and that  the purchase of evidence created a per se conflict here your honour's the court has held that that rule is incredibly narrow it's limited to counsel who are not authorized to practice law or implicated in the same or very closely related crimes to those of the defendant and that's just not the case here in fact not automatically clear that mr fisher's conduct raised any sort of criminal liability at all he made clear i can director honors to the record at and ninety six dollars which is the document between mr fischer and lopez on the issue of the purchase of evidence and he says that the purchase is for the tapes themselves which it's clear already existed at that time and nothing more there's no indication that he was attempting to sway the testimony of that witness and then as your honor also pointed out there is no evidence here if you were to consider this a actual conflict and there was any sort of reasonable or possible alternative strategy but that was not pursued fisher came to the government told the government he had the tapes and that he demanded a favorable plea deal for the government from the government for his client he in fact affirmatively tried to leverage those recordings to obtain a deal and there is nothing in the record to support that had he done anything different the government would have been interested in cooperating his client or offering a plea deal of any sort and as your honor also pointed out defendant maintained his innocence cooperation issue what's your response to your i think that there is no need for a hearing on at this point the as the record makes clear there's no real plausible allegation that the that there is  factual dispute here that merits a hearing it's clear looking at the record that there was no per se conflict for any of the reasons raised by lopez it's also clear that there is no plausible alternative strategy that could have been pressed pursued had there been an i will move on to the issue of elaine on that point the government also the government recognizes that we incorrectly argued the issue of retroactivity below and believe that here the procedural default issue is the correct one we would ask respectfully that your honors consider that if you're honest don't consider that and do you turn to the merits or an ineffective assistance of counsel claim there's no basis here to find that there was an error that was not harmless as your honor pointed out the government's evidence was overwhelming at trial and if the jury had been instructed on the issue of making an individual foreseeability finding which this court has never held as required in the conspiracy case that they surely would have found beyond a reasonable doubt respect mr bacharach pointing out that on the and very briefly your honor there would be no reason for him to have purchased the tapes and then approach the government in the manner that he did with the tapes except for the expectation that by doing so it would have affected the government's ability utilize that which that individual as a witness in fact that is what occurred because after he approached the government with those tapes they decided not to call him as a cooperating witness even though he had been viewed as an porton one up to that point so yes there's no question that the there was an impact on the proceedings as a result of his conduct and that in fact would be witness has been a negative impact though isn't it but he tampered with the witness your honor b purchasing evidence from the witness and then throwing the evidence in the government's face he obstructed the government's ability to use that witness as i did that hurt you can you sue i'm not going to sue under actual and even under an actual conflict again you don't go to prejudice so the fact that it may or may not approach my client is not at issue in a per se or actual conflict you want us to find is that the government's case got screwed up because of what your client's attorney did and therefore he put himself in a he the attorney put himself in a position where he was thinking oh my gosh you screwed up the government's case now i can't go and i can't call that person as a witness himself which the record reflects that mr lopez actually wanted him to be called as a defense witness as well so that was impacted by that as well your honor but again i'm not arguing potential conflict i realize that there would be problems establishing prejudice und the potential conflict prong arguing per se or actual go to the prejudice problem whatsoever and again once again on eileen the government seems to be arguing well again that they continuously argue it should be default that is this issue has been defaulted and you shouldn't consider it because of that except for doing so with a with an argument that's been waived and you're honest should not be allowed to allow the government have it both ways because that would prejudice the defendant in a manner that is unfair it would allow it would basically foreclose the defend from being able to raise a change in the law that is substantial and that was missed and misinterpreted by the or that was misinterpreted by the district court when it was raised the district that this was an issue that was only raise for the st time on appeal this was raised by the defendant below specifically and the judge in the relied upon  into opinion they didn't evaluate the proper evidence and quite frankly if you look at the case itself you'll see misapplied eileen and all the circuits every circuit that have ruled since i lean on whether or not there's a reasonable force field it a requirement