court my name is daniel cook i'm here on behalf of mr wells who was the federal habeas petition here in this case the issue presented or the two issues presented by mr wells are very precise legal fees by a codefendant you know this drug conspiracy case and that the conduct of his retained counsel mr abraham adversely affected mr abraham's performance not an element of proving ineffective assistance the district court judge found there was no conflict and if there was a conflict it had been waived and held there was also no adverse impact all questions of law or mix questions of law and facts subject to a did novo review standard i want to deal with waiver of the conflict in the first instance let's assume there was a conflict the judge said it's been waived mr abraham came in and said i'm cooperate with the government only which only matters if you want to cooperate with the government or want to cooperate actually have an infant or have some reason why should i want to cooperate the government we don't even know that he knew anything about mr johns that would have been helpful to the government would have been adverse to the jones that he could have used anything at first mr jones any of that the record there is mr wells's declaration that if he had been advised of both before he went to trial if you'd been advised that that was an option that the next part of that of an adverse effect as mr wells gets convicted of a number of counts that ultimately result in the forty five year sentence the jury hangs us to mr jones does mr abraham come to him and stabled see now you've been convicted you're looking at  never demonstrated you could have come into federal hate and demonstrated that you did but we're not required to that the adverse effect was the conduct of counsel whether that would have made a difference in the paid by the co defendants counsel and telling mr wells you were going to trial regardless of whether that's in your interest or not he doesn't even discuss that issue with him and after mr wells is convicted  has to prove he tried he never discusses this record doesn't show then under no circumstances would an offer ever been made to mr wells one wasn't in fact made because mr abraham never pursued at all in the this court said that's in effect of assistance of counsel here i'm saying the motivation for that was not only was it a policy of mr abrahams that was i think an ethical and in effect of but it was because he was being paid by mr jones who didn't want mr wells testifying against the second part of it is a declaration filed in support of the severance motion from mr jones that basically said mr jones wasn't involved in this after argument and this court saying the other dence on the direct appeal was overwhelming you know as they were involved in the criminal activity again how can the stairwell say he wasn't involved unless mr wells was that i point that in the ultimately answered the questions and the prosecutor stopped at that point and didn't ask him well was the money jones paid your money what was your relationship with mr johns after nine hundred ninety one he stopped no further questions s good morning my name is burning humanely i'm going to sustain u s attorney from helena montana parents here on behalf of mr smith cora who handled the evidence or hearing and wrote the brief mr scores unable to attend to two other commitments  my reading of the record reveals that what we have here is a case of a theoretical argument by wells regarding a theoretical division of loyalties we really have no adverse interest between the parties because the parties entered a joint defense agreement number one and number two we have a defendant who is predisposed in fact clearly articulated there was a waiver because there was a disclosure up front in terms of a request through said abraham do you want to participate in a joint defense agreement answer yes and then secondly i don't represent people who seek or who want to be snitches do i have a problem here or worse to that effect when wells knowing for the paragraph in the judge's order i think has the names transposed but i do think that the judge felt that there have been informed consent and a waiver but i think w to speculate on two things number one that he had something as the court pointed out before and number two that he wanted to use and quite frankly we can't decide this appeal on speculation and i think the facts  and the clear phone of the record is to the contrary mr wells was not about to offer anything and the government was not about to offer anything so consequently we are in this theoretical area of what ifs and maybes and how about but we have no concrete evidence that there isn't an adverse interest here and i think that it is a matter of fact that wells was not and is not interested in cooperating with the government therefore how can we base our decision here on something that just couldn't be and that's what the council i think is advocating is that there is ineffective assistance here because the attorney should have sought something that could never be because wells was simply not going to cooperate again making  that's that's right and i caution this court that that's a credibility finding and that we shouldn't go there and it makes sense i mean all of a sudden years later he now says gee if i want it known that i certainly would have acted but he was very adamant out front and not about to be a snitch i am not going to do that what what was abraham to do the government wasn't offering anything and he basically them proclaimed i'm not a snitch i am not going to help the government it seems to me that that theoretical suggestion that there might be something there it is really elusive in fact it is an illusion very long term and obviously he knew things about isn't jones dealings that could have helped the government against around the issue than is really whether he would have changed his mind and become a snitch and a lawyer who was not hogan in any way to jones when i've said look the best thing that i can do for you is for you to think very seriously about what information you could give the government on jones camp would lead to a decreased sentence for you now that was judge i'm not sure that that's correct based on the given facts in this case where in we have a declared defendant who said i am not going to cooperate who even said years later it didn't when abraham came to me and told me that he didn't represent snitches did he have a problem there years later in his deposition he says it didn't matter because i'm not a snitch that's a declaration that he wasn't then and he isn't now and i think it didn't matter we first didn't want it didn't matter that abraham didn't represent snatches in other words it didn't matter that abraham was not going to advocate to the government that he should be a snitch that didn't matter because wells was not a snitch was not going to be a snitch and eleven years later when his deposition or ten years later when his deposition was taken he still said it didn't matter and that's only i think hearing that so i says did he ever would have provided information with a part of history no i don't see that in the record anywhere that he said had i know on or had i been presented that option i would have turned on danny jones in a minute that's not there  don't see it anywhere that's why i say we are speculating about this theoretical division it's an illusion it's an illusion and the court went so far is to say to find just a total lack of honor in fact it's in the supplemental excerpt of record record submitted by the government and there's a there's a reference to it i believe to in the judge's colloquy if i remember the adventure or hearing right to have at least raised the question of he didn't want to represent somebody that's leaving the conflict aside he was just somebody that's a principle matter we're not represent people cooperating with the government and then presumably what he should have said  was i don't represent people cooperate with the government but as your lawyer i want to tell you that it's something you want to consider now and if you do you want to consider finding another lawyer and then even do that he did not and i think if you had a situation where you had a defendant that was not so predisposed as as to not cooperate with the government you might have a valid concern but you can't ignore the fact in this case that wells h a declared interest in not being a snitch period why then should the government why then should you hold the attorney to the standard to try and change the way he wanted to proceed in this case i'm not going to be a snitch what you are suggesting is is there some super duty on the part of an attorney to go to a client who's declared and who is adamant and say that he should have done this or that and i think that's just irving here is that reality of the matter is that the attorney simply didn't represent those kind of people and made that disclosure up front and that was perfectly fine with mr wells fact it suited him fine because he was of the same mindset you don't cooperate difference because mr abraham told me he wouldn't do it even if i wanted him to do so i think the context has been the stated to you and i think that's what the record accurately shows in addition mr wells in his declaration in support of his he had information about mr johnson what if you had with everything that you didn't specifically say in that manner that's quite different well but to get anywhere with the police after having been convicted he's going to have to do some cooperation this record doesn't show that the