late assertion of what you now see it as the proper conduct as is appreciated it's fine that you have made that assertion here today to banning the mcdonald's and the timing of it is is advise nelson of the pros and cons of accepting this plea agreement which was very advantageous what extent should we consider the entirety of the advice that the defendant receives because he did have the other two attorneys which as i understand your argument mr nelson would have been well served to take their advice as opposed to this counsel shouldn't we consider the advice of counsel to be all two hundred and ninety three so the stakes were higher than the threat of of if you don't take the play borgen is different because something worse is going to happen than the thing or happening the nd thing notes to produce memoranda and i'm not faulting him for for that but it's just not available or he wasn't doing it at the time when he meets with nelson and his father in the father's the war that's funding every person on the verge of going to prison and maybe even more so the parents because parents sometimes more protective of the children than the children or themselves they were there when here he says i can win the case based on in track and what he should have said was i don't know i haven't investigated the case for fasc in years and they spent about a month they did timeline of the different events to different transactions and there was a gap in the file for five thousand dollars payments that came at in may i believe of  two thousand and ten where the investigation started in two thousand and eight so even though he may not have been the government and i have been i don't know baiting him or whatever with this fictitious company staying person was called by the government in the case in chief to state that the plea agreement and that's where the stipulation of facts the poison pill as mr jones so that as a great charm for it were the stipulation of facts is built into the plea agreement has in essence a confession and couple of seasons that i mean at some point i guess i'm trying to understand the argument that the defendant controls the case the defendant makes the decision happens every day in both state and federal courts where a defendant says well i accept this deal i will plead to x y and z terms or no i choose to go to trial i'd like to have a jury hear my case and make a decision render a verdict based on the evidence and in this case mr  pate you say he was uninformed about the case and he made a recommendation about the entrapment defense possibly being a probably being successful and a lot of confidence in the case and we know that happens every day too where defense lawyers think their best shot on behalf of their clients clients get convicted that doesn't rise to the level of ineffective assistance but in this case mr nelson had not only two of the lawyers mr pearson who's a very accomplished attorney and mr ac also fairly experienced attorney who are telling him this discussing the entrapment defense at telling him this is a good deal and you should accept it and then on top of that his father is an attorney and i don't know what area of the laws father practices maybe it's an unfair implication but at least his father was there as an advisor who had some legal education anough to be a licensed attorney why does this level of mr pa advice in this case rise to the level of overall ineffective assistance of counsel just because he was mistaken why should the court grant relief to mr nelson on the basis of ineffective assistance of counsel  because he wouldn't agree to waive indictment but she's stupid laded the government staple a that if if he would have played guilty on all over starred that he could have still a male to himself with  and so this is a different dynamic he's under indictment now with a potentially six million dollars loss and i received it though that didn't stick with the court of appeals benchley they've simulate it was four hundred exposure has ratcheted up from what it what it was and i think i used three and a half times i did the math again using the minimum sentences and miss jones is calculation actually at thirty to forty seven months i believe this is correct as i'm coming up with six and a half times or greater sentence would would that increase that and so i don't think we can look at it in just a snapshot it's a july nd i think and base of what i'm saying is that he gave uninformed if vice on july nd society he gets a pass for that even though both tell them about pay testified that when he got that later i didn't give it i didn't give it much thought and he was under the impression and i'm not any communications but if he got hard on july st i think it's a reasonable inference that the same type conversation would have taken place for him to get hired to begin with and he would have gotten funded do we know what day in particular and by what vehicle mr pearson and mr christie for safety work terminated they get a letter from mr nelson saying i'm switching counsel or are they still involved in the background i think it also kind of went on on july st and july nd but well but but when you say it all went on i understand what happened what i'm asking is when did their turn your argument is that mr page got involved and say and he's the one who rendered the ineffective assistance and he's the one mr nelson was depending on at that time what happened to his prior counsel where they terminated officially or where they just told your name a few times already but you get to respond thank you your honor may please the court my name is trisha jones and i represent the united states let me began by addressing an issue that i neglected to address in my brief which is the issue of remedy the defendant argues in his brief that the proper remedy should this court find ineffective assistance of counsel is to vacate the convictions and sentence and to remain in the matter for recent and sing as if the agreement had been entered into but that's not the correct remedy according to the supreme court in laughter versus cooper the correct remedy is for this court to order in the united states to read off for the and to remain on the matter and should the defendant actually entered a plea agreement and enter his plea it will be at the discretion of the district court whether to sentence the defendant according to the pl agreement alone or and vacate all of the trial convictions and sentences or to vacate some or none of the trial convictions and rescind the defendant accordingly so most of the discretion here is still with the district court and some of these are all of the trial convictions may remain in effect even if the court does find ineffective assistance of counsel in the rejection of the plea agreement finding yes that's what it comes down to value but it is a legitimate fact finding and we have the standard you can probably recite it as to how we view fact finding to be does seem to me that there is interests what is the biggest shortfall would you say in the evidence of why it is proper to say there's not enough there prejudice what error st off is the district court found as a matter of fact that when the defendant hired mr pate he simply did not wish to plead guilty at all so it didn't matter what kind of advice he would have received from mr paine about pleading guilty and we know that he already received good advice he would not have pled guilty and i cited the white case an unpublished case from this circuit in my brief that was similar there the defendant got inadequate advice from his definitive past of a plea agreement but because the record supported that the defendant was adamant about going to trial the court held that there was no prejudice to respond to this such drugs me one way just beauty  that there is a defendant who is just desperate for somebody to tell him that he can get out of this that his whole life if he thought it was going to play out isn't going to play out that way and he's this is quite likely going to work out and that is very hard to overcome maybe and that's one way to view the evidence you've got in response to that sense of what this case is really about  agree with you to some extent i think he was desperate to go to trial and to to have this all go away and not in not actually get in court and say i'm guilty but i think even if mr pate had told him you know what this is a good deal he still he would have found another lawyer he was desperate and he was going to find somebody to take the case to trial and to be rallies were found somebody at affectiva enough to tell him he had a chance to win it one way to look at what you're saying perhaps your honor i think it was bad judgment on his part and if he was definitely reluctant to enter a plea and even even from the beginning even whe he agreed to it but he didn't authorize it submission to the government he started telling people he went to see the executive director of the national conference of black mayors to try to convince her to help him to somehow avoid prosecution in a political manner and that information came out at trial he was searching for a way to go to trial and even if he is his counsel had given good advice and said even if it stayed with mr page mr page might have said look i don't know enough about it i need more time let's look into it you know it's your choice these are the consequences all of the stuff that ms pearson or mr  then said but it's your decision and if you want to go to trial i will take it to trial i'm a fantastic trial attorney and i will get you off and he is an excellent trial attorney i don't think he would have  plea that the evidence you know from every point from from his own father who had to call him to tell him to to authorize it to mr pate himself who said when he came he came ready to go to trial to finding by the district court that i think is important in showing there is no prejudice and judging the heart has brought this up in particular is that the defendant was already properly advised and and he understood the plea agreement in the district court found both of those things and both are supported by the evidence mr kerr fasc and ms pearson did everything that competent counsel would do in the six days between when mr ammons and offered the plea agreement and when  mr nelson virtually agreed to enter the plea agreement they had meetings they had phone calls they looked into the evidence into the defenses they talked about the increased value i mean this the idea that the six million dollar value was something brand new on july th when the indictment came down is not true the prosecution said look this was about business worth millions of dollars and you were getting a great deal by a twenty two thousand dollars valuation on this bribery activity because we could it could be millions and that was something that mr crow fasc and his peers and had already discussed with the defendant that the defendant already knew about the poison pill provision he already knew that the government had gone so far as to agreed to file a five k motion not just to consider a five k motion but to agree to file a motion they they inquired about entrapment they talked to the defendant about that they let defendant listen to one of the tapes they they they did what they needed to do they researched the sentencing guidelines and although mr crow fasc made a mistake about the initial base level  guideline it actually should have induced mr nelson to be more interested in pleading than less interested in pleading because they thought it would be only an eighteen month sentence and finally i'm not sure  defendant is relying anymore on his declaration about if i had been advised that the sentence was twenty four to thirty months i would have entered a plea because that's the only direct evidence we have here about what defendant would have done he did not take the stay and we don't have anybody who heard him talking about what he would have done had he gotten the good advice so the only direct evidence is that declaration and the declaration itself is not credible because defendant is not credible also because it's not credible to say that you would plea to twenty four to thirty months but you wouldn't plead to eighteen months that doesn't make any sense it's not credible because of all the other things he said in the declaration that were not true and of course it's my guess that that's why mr nelson didn't take the stand at the hearing because his declaration was so filled with untruths there were numerous numerous instances of defending talent untrue at the during the investigation and that evidence came out at trial so that the declaration simply cannot be believed and your honor it is the defendant's burden to prove the reasonable probability that he would have entered the plea had he gotten different advice from mr pate and he just has not satisfied the burden most of the evidence tends to show that he just wanted to go to trial that's what the district court found and i don't see how the court can find that that's a clearly eroni is finding based on all of the evidence and less your honour's have additional questions that would complete my argument thank you e argument about the trier of fact making findings despite five pages of expansive description not proven which is contrary to all the facts of the case and them and the law i agree with mr jones that that is she iffy as of july nd and in response to that but the question about whether you can basically used as a substitute the advice of professor and pearson and that's the that he was withdrawing and then he goes on to say that pal he thought it was not in the government right but that's a poor excuse for facilitate defendants breach of the of the plea agreement ensuring that he understood it and  the trial judge's findings that there was no that pate was in essence affected if you don't answer that question in the infirmity if you can how can you properly analyze whether he was prejudiced and again i go back to the game changing events on july th and that he didn't tell them about the points he had  no advice and didn't even inform him that the plea agreement was was out there so to make this clearly ineffective counsel and in the trial judge can say well he wouldn't prejudice