to the substitute counsel so that the counsel that we're talking about with her third counsel correct it depends i know your hon guess it depends on what you're referring to didn't she maybe hire someone and then she had court appointed counsel and this was their second court appointed counsel or something like that i don't recall her having a private counsel ship court appointed counsel which is the federal  office mr prado then left the office and was replaced by mr kim but she was represented by the federal public defender office the entire time so she never so this wasn't her first lawyer had she had changes of lawyer previous to this request no your honor she had not previously made any size up to requests so she simply express general dissatisfaction with counsel nothing more she provided no additional information nor was any later provided as to any actual conflict let alone one that was irreconcilable the district court denied a request for new counsel summarily and without a hearing so how did the district court abus discretion if there was no notice of any irreconcilable conflict and problem going on and i think the district court just says something like no your counsel competent that is what judge  does action was based on no your honor but let's let's understand where we are at this point the defendant is being represented by counsel that she has expressed issues with she is not permitted to with issues she express different case right and then that case got continued ok mr kim had been assigned by my office to represent her especially in the other case as well as in this case ok she was a continued she had been guided in june discovery had not been provided to the defendant defense counsel at the time of the first continuance request a second continuance request was then made by the parties the stipulation on november fourth on november fifth a superseding indictment was filed on november sixth the fence counsel at ms jackson's request filed the motion with the court wi he file an improper motion i mean did he not by not putting any facts in it you just can't say well i don't like my lawyer anymore your honor mr jackson did not prepare the declaration defense counsel with ms jackson was having conflict with from your office correct submitted the application on her behalf as he was obligated to do but he did not put any reasons in your honor they were communicating that perhaps is part of the problem when well why didn't you say that why didn't he say i'm not communicating with this one because she won't talk to me your honor there's issues of attorney client privilege hearing that is and here the court did not hold a hearing the court simply issued a one page written order with ace hendrik notation denied counsel is competent which this court has made very clear is not privilege it's supposed to be in profits the typically the prosecutor's the most say anything fact that i would be prepared to go in camera and and give more detail to the court as to liking your just not being happy isn't that if if all that came out from the hearing was you're not happy then that would not you know that would not result in a removal so why it isn't yes i agree sometimes there is attorney client privilege but to say that the relationship is broken down that there irreconcilable differences i would be prepared to you know we request a hearing and i would potential conflict with counsel who wanted the hearing and that is why case after case after case after case makes very clear the court has to hold a hearing to question the defendants to see what the defendant's concerns are the fence counsel there was a breakdown defense counsel wasn't there to represent her complaints about her conflict with him it was for the courts to question  he is not by itself an abuse of discretion when there's no reasons given no you're out let's be clear what smith says miss smith says yes if there is evidence in the record to demonstrate there is not a conflict which in smith the court had already denied twice before trial had already did night substitution requests and then throughout the trial the court observed the interaction between the defendant and defense counsel and was able based on that to determine whether or not there was a complete breakdown here judge real never saw the two of them together ever saw mr jackson and mr came together they had not yet up here in front of judge real they did not do that until december first so the court was not in a position to observe and make a judgment so smith doesn't it doesn't apply here on what applies or all of the other cases what we've cited which says the court is obligated to hold a hearing and  that it's the simplest thing and it doesn't take long and the court simply refused to do it here and again we've we've been mussa by the way judge real was the judge who was reversed for doing exactly what he did states your honor i want to address this issue that mr jackson had alleged that there was a conflict or a breakdown between herself and her attorney that of course never happened the only thing that was said here by the deputy federal public defender was that she had recently express dissatisfaction with her counsel it is the preference of this court that the district court conduct a hearing when something when a plaint defendant makes allegation of some kind of conflict between herself and the attorney but in this case number one she has an alleged a conflict or near reconcilable conflict or a breakdown of communication or of or of trust and number two the court did have a sufficient basis for making its determination a sufficient basis for making an informed decision and let me just highlight briefly what those bases were at this point she files her ex parte counsel files his ex parte application for a hearing on november sixth he had been representing mr jackson at that point for about twenty days in that time period he had filed jointly with the government three stipulations indicating that he had been in regular communication with his client of one was for a protective order and two were for a continuance of the trial date in the continuances in the request for the continuance of the trial date she had signed those stipulations and she indicated that denial of a continuance would deny her continuity of counsel indicating that she wanted to continue with her counsel the most recent of those stipulations was filed only four days before the ex parte application was filed by p d kim more importantly as  i can remember who i apologize one of the members of this court highlighted she was represented by mr kim in another federal case and she had already been represented by him at the time of the application  the docket flecks that she had been released on bond on the same terms as in the other case indicating that the district court in this case was aware she had another parallel federal criminal case as we noted in our brief she never once made any claim that she was having differences or dissatisfaction with that very same counsel in that other case she of course continues on with the same counsel on december first we showed up for trial that was at that point the trial date motion was two weeks before the motion was approximately two weeks before trial yes your honor there was a december first trial date at that the motion the ex parte application was filed on november sixth i believe the trial at that point was set for november twenty fourth ultimately the court continued the trial to december first at that point the judge said well she hasn't been arraigned on the first superseding indictment so we're not going to go today we're going to go later mr jackson was in court with mr kim the issue was not raised she then proceeds to trial with mr kim and another deputy federal public defender mr lindsay kim continues to represent her through sentencing he accompanies her to the pre sentence interview that's in the in the in the record he represents her her at at her sentencing and the other in the other case so and never again this she raised this issue that she was dissatisfied with counsel and clearly there was no irreconcilable conflict no breach of trust no complete collapse of communication all the things that the cited by the defense say has to happen none of those things happened in this case in preparation for today's hearing your honor i said came across something in the excerpts of record that i should have put it in my brief and i didn't which was on the december first hearing the court made some evidentiary rulings before the trial began i'm sorry yes i think it was on december well it was i might have been on that at the time of trial at the time the trial actually started he says i've done that your honor we have i have and the government has made made no other plea offers since we were last here indicating that in that time period he again was having communications with her not just about the stipulation for the protective order not just about the two stipulations to continue the trial date but about the offers one other fact your honor is that before trial began he filed a a another request behalf and that was request to modify the terms of her bail and in that applicant that's also in the docket your honor and in that application he talks about her work what she's doing and why she needs modification of her bail terms so that she can continue to do work clearly there is regular communication between mr jackson and her counsel clearly there is not a complete collapse of the relationship or a clique complete collapse of communication i think what i think it was clear to judge real at the time that he denied the ex parte application the request for a hearing and certainly clear at the time that he later explains it because they didn't come up earlier but he when he denied the motion for bail pending appeal he explained that he had another basis for denying the request for a hearing and that was that it was clear to him at the time that he denied the bail motion just as it was back on november sixth or november tenth when he denied the ex parte application that this was just another unreasonable delay tactic that the case was moving forward she had filed numerous stipulations it was clear that she was communicating with her counsel and judge real saw for what it was which was just a delay tactic one other thing your honor as i was looking at the at the docket again while i was waiting to come up here at the time that she filed the ex parte application for a hearing where mr kim did her aunt had already pleaded guilty so she saw the writing on the wall things were moving judge real was pushing the case ahead for trial and suddenly she files this ex parte application for a hearing it is skeletal as mr libby concedes and judge  a breakdown in communication but he couldn't bring himself to do that i think it's pretty telling that all he says in one line is recently my client has expressed some dissatisfaction with me and she requests that i ask this court for a hearing so the question is did judge should judge real have had a hearing he probably should have had a hearing he probably should have had a hearing pursuant to this court's precedents or he should have inquired at least but he didn't have to and he didn't have to because there was a basis for him to make an informed decision to deny the request for a hearing if the court has no questions on that issue for me i'll move on to this i see my time is winding down so i want to move on to the second issue with  whether there was in fact a breakdown in the relationship between counsel and his client and if there was no breakdown then i think the case stands if there was then if the court finds that there was a complete breakdown the relationship denying her effective assistance of counsel and a violation of her six meant right then maybe the court would have to reverse and send it for a new trial but clearly that is not what is happening in this case so how many court on december first sensibly for a trial that then was continued to january nineteenth and then of course there's a two or three day trial sentencing so it would have been three more times ok and several days and several days and the issue is never raised again ok thank you thank you and then i have only twenty seconds with the court like me to try to address the second issue with regard to the eviden honor again as as judge by recognize this was not ms jackson who was submitting anything to the court it was the court it was his her lawyer on her behalf at her request which is how it has to work because she is not permitted to simply file documents on our own with the court has the government can see that there should have a hearing because that's what the case law says there needs to be a hearing there needs to be an inquiry and there was nothing in the record that would likely did this she filed this for the defense counsel fathers two days after the continuance request was submitted in which the indicated a continuance was necessary and this is government excerpts of record and it was right after that she said i am concerned about my lawyer and i'd like a new attorney and so there should be the question why the request was i see my