as to both knowledge and especially as to the government's willful blindness carried sharp can prevail on that claim even if this court upholds the district court's credibility and fact finding determinations and second mr schwarz provided an effective assistance of counsel and that he told his client that he could be guilty of being willfully blind soley because he did not get this substance regardless of what other steps he took for those reasons the motion to withdraw the guilty plea should have been granted in this court should reverse going to the conflict of interest claim had mr sharp gone to trial his defense what have been that he attempted to order th de zero one one which he thought was a legal substance and has distributor maggot mulch for which everyone that on that company was later indicted  sharp thought that this was a legitimate chemical and the reason why this case factually is kind of strange as normally when we think of someone going to get the advice of counsel they know what substance they have but here mr sharp says that he has e mails telling the distributor do not send me absolutely naca and he had proof showing that he paid double for the substance because he thought this was  waco and told the distributors not to send him an illegal product counsel could have testified about this at trial would have gone to a willful blindness especially if mr sharp hires a lawyer and goes to handle determine whether these chemicals are illegal or legal that would have shown that he was not deliberately remaining ignorant and that's true regardless of whether you accept mr schwartz this testimony during the motion to withdraw th been classified as an analog because i just found out from my distributor mr schwartz looked at that and told him yes that's been classified you need to get rid of that and that mr sharp listened to that advice and got rid mr sharp to take obviously but it doesn't undermine the fact that the council told mr sharp i don't think this was a controlled substance or i don't know this is a controlled substance and i don't know if that's an analog rebut it i thought the district court credited mr schwartz as having said look these these things either are or are going to shortly be listed just get out of the business get rid of all these things how does the confusion over th jay and all that i mean once once he said look these are either are all going to be at that point if he continues to sell and his isn't he sticking his head in the sand well no not because if that's followed that advice was was coming on the heels of their lawyer saying i don't know if this was a controlled substance and i don't know if this was an analog there well did he check other sources other than his lawyer what other well he had lab report said show any other efforts to indicate to discover what he was actually show he had lab reports he hired a lawyer i know the lawyer said on and testimony that he was not hired for this purpose but you saw the time records where the first three entries said that he was chemicals and whether or not they were legal or illegal the the big question now is was that willful blindness simply because mr sharp did not get these chemicals tested and i think that as an  matter of law the attorney was wrong to tell mr sharp that advice and the reason as there is no proof and the record that testing is even available i think you'd be hard pressed to find a lab technician to legal opinion you just need to tell him what the chemical substance is and then he can with that identification try to find out if it's been scheduled but once a lab technician learns that it is a controlled substance or an analog there of the lab technician is guilty of possession even if there is no intent to distribute under federal law and so i don't know that the testing is even available here when i think you're right he really should have taken his lawyer's advice and get out of this business because it seems  like you have to know going in when you're dealing with these things that you've got to know what you dealing with and if you don't you should probably leave it alone and i agree but that's not the advice that he necessarily needed to show that he was show that he was willfully blind he had to take no steps he had to do nothing to try and find out what the substance was this defendant took as many steps as one can possibly take now did he listen to the ultimate advice about you should get out because this may become illegal in the future no but that doesn't matter as to whether or not the substance was illegal when he possessed it we are not relying on advice of counsel defense here it was enough that the lawyer would have been a fact witness under iowa professional rules once a lawyer realized he would have been a fact witness he had a duty to get out of this case there's no question that the lawyer new knowledge and blindness was going to be the primary defense at trial you have the letters from the defendant to the lawyer a year eighteen months before the decision to plead guilty where he is directly saying i did not have knowledge of this i ordered one chemical and i was given another chemical and he would have had a great defense had he been able to call the distributor get those people on the stand to say hey we sent him something that he did not order  had e mails documenting all of this and the lawyer would have been a great fat witness to rebut and he sort of willful blindness theory because you can't be willfully blind that you're taking active steps to find out what the chemical is and i tell you that as a matter of law finding defendants guilty simply because they did not get the substance tested creates a lot of great danger for people that are and the herbal supplement industry and i realize that that may seem like a small and astri but i happen to use a google search this morning and there are over two hundred fifty stores and the city that sell k two or spice and to tell them if you you knew he was a fact witness under the iowa rules of professional conduct he needed to withdraw the attorney also had i mean how many countless conversations on recorded phone lines with very detailed attorney and i didn't even put in the brief the fact that the biggest conflict of interest and that's case was that mr schwartz was representing bob sharpe shereen mohamed and haris or ari all of who were cooperating doing the same thing in another case the only reason we were unable to present that on appeal was because it was not present press below so there are a lot of evidence of an effective assistance of counsel here and there was a lot of evidence of a conflict that  witness i needed to get out of this case and the lawyer had a lot of great reasons to continue on in that case you saw the billing records have you brought  ineffective assistance claim in this appeal or is it simply to the plea withdrawal i think both the play withdraw were asking for based on a conflict had to be thrown out i don't think you have to get into the credibility determinations or the district court's factual determination as we obviously challenge those but i don't think you need to get into that to find that there was a conflict of interest here but let me let me try to make it a mockery you're you're not reaching an ineffective assistance of counsel claim in this appeal are you know we're raising that under the guise as a fair and just reason to withdraw that guilty plea we are not raising a separate and effect e assistance of counsel claim by itself because i realize that the courts on direct appeal generally do not like to take on those sorts of claims without an adequate record here you have plenty adequate record to determine whether or not the counsel provided an effect of advice to mr sharp and that mr sharp could be guilty of well fully being willfully blind possessing a controlled substance simply because he did not get the substance tested and despite all of the other actions that mr sharp took in this case i see him running short on time so our serve the rest of it for a bottle the court this case involves a defendant who walked into court on the morning of trial pled guilty admitted all the facts all of the elements of the offense  including the knowledge element under a willful blindness theory and then a few months later after he receives a pre sentence report that has a higher range than he initially anticipated or that his lawyer had  back to deliberate ignorance right yes he said was by avoiding testing right he answered yes and then he added on the fact that well i didn't i didn't get them tested yes that's sufficient the the answer yes is sufficient but if it's yes bob yes by your yes because i didn't tast is not alone sufficient i believe it is your honor and under the circumstances and here we're talking about the defendant's burden to show that there was not that there was a fair and just reason to withdraw the plea and so i think the court is entitle to rely on the regularity of his yes saying yes i was willfully blind or yes i was deliberately deliberately ignorant and the certainly the fact of not testing the products was a was ignorant factor in his willful blindness that was the that was the fact that showed that hey i had it i knew i had an opportunity and a mechanism potentially to find out what these substances were but i didn't take it i avoided that and i avoided getting actual knowledge so so hopwood correct that if a chemist did the test and found out it was illegal that they themselves were subjecting themselves to potential criminal prosecution i think that would be a very unusual situation and i would liken it to someone on the street who picks up a bag and doesn't really know what it is and then realizes all this crack or whatever it might be they can turn it over to the police and they're probably not going to be prosecuted for it requires knowing possession so if it turns out that's the sort of the situation i suspect that that's why labs wouldn't test the substances because they don't want to be in those situations or be perceived as attempting to assist individuals who are illicitly selling these products but under a technical reading potentially but that's certainly not what we have in this case you have to be knowingly in possession of that substance and i think you just sort of made the point that causes me a little bit of trouble is that there's no basis to think that they could have been tested and i think you just said a lab is probably not going to be doing this for you in our in our record yes the record in our case is that mr schwartz headed attempted to contact labs to see if anyone would do it and he said no they couldn't but that again goes to the willful blindness that this this argument defense argument sort of flips everything on its head it's sort of starts with the presumption that yes i can sell all of these things i think i can sell these drugs and mislabeled packages that say not for human consumption even though i know that they're for human consumption and i can keep doing this as long as i don't know exactly what's in there and that's just not what's required he he he had plenty of information he's discussing chemical names including a b who've been knocked out in those e mails at a prior time he's discussing chemical names with his suppliers he's going through this he's proceeding on selling these substances in their mislabeled packages despite realizing that these substances had a very high chance that they contained either controlled substance analog controlled or analog substances and he did not take affirmative steps or actually took a firm no steps to avoid learning what the substance actually was is effectively relying on the advice of my drug dealer  defense here well because this mega mulched tell me this this is what i believe it was when he knows that he's dealing with somebody who supposedly is putting out you know charging him double for this th day zero one one and i will know he he mentioned the one two two zero one which is an actual which is an analog that was also found in this case and was relevant conduct so he had looked at that substance for purposes of sentencing and as i mentioned in the brief dr frank is a not a native english speaker which isn't necessarily apparent from the from the record but obviously the district court was aware of that and then he was asked a question of well no i'm talking about th gate zero one one and he said well i think i've heard of that or i've heard of that but i haven't reviewed anything like that for for this case there's no record there is no follow up there's no presentation which one would expect that someone from mr sharks position if he's claiming you know i was is this legal substance that's not a controlled substance that's not my analog that he would have provided some sort of affirmative evidence that this substance actually exists and he never did that the best you come up with was a cross examination question where a d n a pharmacologist said well i'm a i've heard of that there's no context of how he heard of it it could have been walking into court have you ever heard of this th days or a one one i don't know but that could have been the the situation that relic that record really isn't developed and there's no affirmative evidence that zero one one actually exists as opposed to being just a ruse created by the defendant i think it's important to note that this entire entire industry this synthetic drug to spice industry operates on deception the base model that was operated  employed by the defendant was to package these substances in a package that said not for human consumption does not contain a list of various chemicals that are controlled substances but that entire purpose of including the not for human consumption on there is a no to the fact of an analog act they put doesn't contain substances that are actually controlled on the packaging and then they put not revealing consumption because they realize that the analog act exists and so they're trying to study on the legal defense at the start  interestingly this defendant knew that more than even the run of the mill shop owner might have because this defendant was packaging them in these substances himself he bought the substance he bought the packages separately and had a manufacturing operation  his basement where they were combining the chemicals with the plant material and putting it into these packages that the same substances into different packages across different in different  on them or a different brand name so to speak god's of aroma darkness different things like that they're putting the same things in different packages so the entire operation is based on deception sold the fact that the district court discounted the defendants testimony discounted the notion that th day zero one one exists or that the defendant truly believed that it was the substance i think that's well supported in the record was there written factual basis for the plea it was not in writing your honor th asked sharpe whether he believed there was a high probability that the substances were controlled substances are analogs the the specific question asked was whether it was subject to regular regulation under federal drug laws and so illegal under some law and that's not what was supposed to be the defendant here it was specifically posed under a federal drug law that it was regulated by federal drug laws and i think when you add on in this case the fact that defend it was packaging his materials in packages that said not for human consumption that sort of combined deter you know sort of shows what the defendants answer their means which is yes i believed that there was a high probability that the substances i was distributing were regulated by the controlled substances and all act and that's sufficient under under mcfadden i understand mcfadden is an analog case and this was not prosecuted directly under the analog act but under mcfadden turns out it ends up being a controlled substance they still have the sufficient mens rea for a violation of a forty one a one they believe that they possessed a substance that is regulated under the controlled substances act and as the majority in  said the controlled substance analogue act just extends that umbrella of the controlled substances act to analogues what exactly was the controlled substance he was charged with in this case he was charged with a b food which is a which is a schedule one controlled substance  conflict which i don't think the court can consider certainly doesn't have a faction there's certainly no facts in the record to consider whether there was some sort of an permissible conflict with those other individuals mr muhammad al sharia or mr  have been even more founded at trial what we would have done put on would have been or he would have been putting on his lawyer to come testify he asked me about these substances whether they were controlled or analogs i told him i can't tell you but you shouldn't do it and he promptly ignored all of that advice because that is the advice the advice is you should not do this i can't i don't have enough information to tell you whether it's a controlled substance analogue or not  but you shouldn't be doing it that right there would have just it would have walked the jury to a willful blindness finding on the case so the idea that that that testimony was otherwise relevant to the wilful blindness theory and in a good way for them found it just doesn't make any sense in this case looking through i know it's i don't think i have anything else if there are no other questions i will rely on the brief and ask the court from the district court in all respect yeah just a few quick points again mr sharp wasn't charged with whether or not he made a bad decision to stay in the synthetic cannabinoid industry and so that advice from counsel doesn't get to the key issue as to whether th j is there a one one w controlled substance or an analog pair of my co my opponent talks a lot about the substance has been mislabeled that is an f d a offense that carries a much smaller range of punishment that knowingly or  willfully blind possessing a controlled substance are analog and judge brinn or us a great question about under mcfadden was that enough for him to say that this was regulated under some drug law that exact argument was rejected by the court mcfadden where it said it's not enough for the government to show that the substance was quote regulated by any law you could use a degree of difference right yeah he said it was regulated under some federal drug law and it could have banned under because he knew there was a disorientation effect that was enough to show he was guilty that's not what he said at page forty thirteen of a guilty plea or he said when you say high the effect that came from them weren't like a they weren't like a marijuana high it would cause the disorientation and then the special factor as to the timing of this he pleads guilty on october he starts contacting lawyers and november  comes out in december new counsel and turns on a parent's december thirty first shorts withdraws january twenty first and the motion to file the guilty plea withdrawal was filed the next day mr sharp was in county jail trying to get another