the government has conceded that the district court committed plan thing with respect to issues three and four i'd like to begin with issue one and the question of whether the district court violated mr sankey th amendment right to counsel and whether the remand in this case should be for a new trial mr sankey filed a motion with the court several months before a trial entitled an adequate representation in which he set forth in great detail decision dissatisfaction with his court appointed attorney who had been on the case at that point for some seven months and according to mr sankey had done essentially no work on the case other than to put in three weeks for continuing to most disturbingly mr sankey allege that the attorney would not even review the evidence with him because he considered it to be too disgusting and he concluded by saying that he cannot get a fair trial with him as his attorney  the pretrial letter what exactly did it it was actually a motion your honor it said among other things that mr comer for the attorney would not review the evidence with his it was made some seven months after the attorney's appointment and some six months prior to trial a request for a new counsel was made six months before the trial i'm sorry on this i understood your  sankey's motion an adequate representation motion was filed six months prior to trial them seem to relate to the formants at trial none of them seems to be specifically about being afraid of prejudice to sentencing or something else just i had a bad lawyer at trial who should be representing me on appeal so especially since it sounds like we're going to send the sentencing parts or some of them back for you to prevail over the fir ticked we have to find that that st one that was not expressed still needs to be construed as a request for and diaz says the better practice is to be inquiring here right now let's say we read d a s to say the district court should have inquired let's grant you that now setting aside judge so either you have to show us that this is structural or you have to demonstrate credulous your brief has not made any effort to show prejudice can you make up prejudice showing here today cases like the last one and more likely tighten our bridge when a court appointed attorney should be removed for cause and we are assuming for purposes of this question that he should have been removed for cause now there are the constructive denial of the right to required that though in this situation if an attorney should have been removed for cause then it's considered prejudiced person let me let me clarify again there are two ways you can with one of them is structural or presu you're pushing that now let's get to that in a minute i want to give you an opportunity if there is anything you can cite to show prejudice this is your chance if you don't answer this question then we have to take the whole thing on the structural approach  this attorney did that was prejudicial to my trial or did not do that or should have done if we have a point is there anything you can cite in this record that would satisfy prong absolutely your honor so for one example the attorney here did not object to the district court's failure to instruct the jury with respect to an essential element of the enticement offense there was no instruction given to the jury that you look at the judge's opinion i can be found in docket eighty nine dollars in which the judge denied the government's motion to preclude an entrapment of found the judge goes through great detail of the evidence concludes that there is ample evidence of entrapment in this case by which your jury could find entrapment if you compare the judge's opinion with the closing argument that was given in that case you will see how inadequate the closing argument actually is all of the fact that the attorney did not utilize because of his lack of preparation and i could be their counsel had a strategy in their providing a strategy to try to diminish the and the conduct that occurred because it would have such a significant impact on the jury maybe maybe that would strategy i don't think there would be any strategic reason your honor for not referring to many of the  facts the judge himself referred to in the opinion that he wrote explaining why entrapment in this case could be easily found by a juror mr epstein aren't these kinds of prejudice increase the kinds of things we normally fail fail failure the district court's part to inquire there was no reason given at all for the defendant's dissatisfaction in the case but yet the court remanded for resentencing and that's where they d found structural error where council wasn't removed now that of course was a case where the counter was retained but mr sankey here sits in the same position at the t respectfully your honor he doesn't have to demonstrate a strickland problem he has to demonstrate good cause to remove the attorney which is what mr sankey did here and once he demonstrates a good cause then he is in the same position as anybody else he has a right to a different attorney and what the supreme court sent him to dissolve as well as we cannot evaluate what how another attorney might have handled this case and what the result would have been and that's why it's a structural error  and there was a pretrial conference here were the attorney himself corroborated what mr sankey was saying he made clear that he had been on this case for some at that point almost a year and he did not even know what motions had been filed in the case he had to ask the prosecutor so what motions did he file and his position at that hearing was i told my client he doesn't get any more and he doesn't get any motions from me because he filed motions on his own and that was plainly wrong the judge appointed mr comfort had given him an opportunity to file motions but the attorney had not even done any delegate due diligence in the case even look at what motions had been filed we need a record we only looks at the question then of whether there was an effective representation and to do that is basically to vitiate the rule of wealthy which is that a district court abuses its discretion and if it doesn't inquire when the defendant raises dissatisfaction with his attorney you would just be putting it all in the bundle if you got effective representation a trial and then there's no problem with the district court didn't do what needed to be done prior to trial as i said well it was self based on your failure to inquire as opposed to some of the monster bill effect on the out as the th circuit and the six circuit have ruled in these cases where there is cause to remove the attorney and the defendant is made to go to trial with an attorney who should have been removed because there was good cause to remove him because of a breakdown in the attorney client relationship he is effectively being denied his right to counsel it's a constructive denial of the right to counsel d s to his contacts our presidents as to us he commands that even when the trial judge suspects that attendance contentions a disingenuous and his motives impure a thorough and searching inquiry is required not really i am arguing that your honor and i'm arguing that this is the case is all cases have to be viewed in context i believe that there was no specific duty on a district court in this case inquire however i do believe that the district i have a difficult client to my knowledge he's not trying to fire me he wants in he's saying that he's not happy with me because he wants me to file motions i believe motions are all already been filed in fact the district court ruled i'm nine big motion filed pro se by mr thinking i would agree with the court that this is not in you know articulate the thing that he's quite articulate if you go that can look at the proceeding motions that and letters and brief that thankee for the period of six months that he represented himself they were quite articulate he knew what he wanted and he knew what to ask for any new have asked for relief  let's assume we disagree with let's assume as judge mchugh said that because this is pro se it promotion should have been considered more liberally let's assume under diaz the better practice would have been to  like i'm meeting with my client he doesn't want to resolve this we are going to trial there's a lot of discovery here and i need assistance so the district court had reason to believe that communications were on discomfort was raised the judge could have concluded that whatever problems that may have existed then the zones and therefore i don't need to to take any i think that's accurate and i think the record confirms that night and so that you're making a case specific argument on this record we'll hear from mr epstein on rebuttal if he disagrees with your characterization the record i'd like to hear anything further you want to say on the record and then i'd like to hear you speak to the legal issue which is assuming by mr epstein's characterization of the record if this wasn't enough under thirty i just assume that if you talk about this record why should we not treat such errors as structural reversal where is the right will require prejudice why mr epstein says automatic reversal do you have a counter argument as to why we should look at case specific prejudice not treat this like other structural e our district in this kind of case he was he was happy and like always if i called to look to hear more about this by all means i would but i would your time is running low and after they're done with this issue i would like to ask about condition  case in terms of what is intent was when he goes to strand was it to have sex with this reporter the fourteen year old or was it is he claimed just to have lunch with him and say hey back off it's hard for me to get past that in terms of prejudice i know we're you cannot have access to the internet that is such a blatantly absurd condition in this day and age if you just can't even drive a new car because new cars at least the book was written i think the information was everything a car thirteen years ago more for guidance here because all the court said here is that if you will there should be periodic drug test my response to that your honor would be that this is not probation office especially because we're dealing with drugs and alcohol step crimes and ultimately any consequences one from that will be up to the dis in sex offenders it may well be warranted but it's done very infrequently and honestly at the very beginning is a kind of a therapeutic tool as opposed to a tool to determine veracity and i wasn't sure leading the conditions whether or not eighteen and even if a war in the context of a football stadium or baseball park what does it matter it seems like that was one of the conditions this is seems like a lot of stuff were sold in here and the pot was stirred and what came out of it was conditions of supervised release that you encounter in your everyday life like going to movies or going to the grocery store but everyone can agree every want to work in your intelligence can read that if you go to a park just to hang out more there are just you know where we all know he's congregate a little league baseball game you're there by yourself that that should and does raise red flags for someone who is a sex offender if we think that the condition is worded somewhat bigger can we sa by just limiting it to these parks the school the playgrounds that are expressly enumerated because as you say red broadly it can't be that you're going to have to worry about whether he can go to the supermarket or or church or some other places where specific chunks of prejudice if there is good cause to remove an attorney let me give an easy example and then i think this case is pretty close to it the easy example would be if the attorney say in a case like this made some type of homophobic slurs against his client to his client client raises that in a motion for removal the judge denies the motion and goes to trial i don't think a requirement of showing the prejudice would be necessary there because you have no way of knowing how the attorneys believe might have impacted the jury whether virt whether explicitly verbal or whether  nonverbal communication likewise here if the attorney is so disgusted by this evidence that he will not even reveal his client we have no way of knowing how that might have impacted the jury how he might have communicated to the jury nonverbally likewise free trial he communicated to the judge that he would like to file a motion a stand simply seeking leave to file additional motions but he doesn't really want that to be granted he wanted to be denied the clear implication of that is that he would then go to his client and say look i tried on your behalf to get the judge to give me permission to file more motions but he won't go for it so i can't say he'd be lying to his client he'd be acting against the interest of his client if we have a situation like that then i don't think there's any need for a further showing of prejudice honor but i think if the motion is properly construed as a pro se pleading must be then it's obvious what he's asking for there and he is asking for a new trial though he doesn't explicitly say he's saying i can't get enough of a fair trial with this man he's not doing any work on my case he won't even review the evidence with me ok when it's all that is your generous reading of that motion it may well be that mr  asked his version he'd say i didn't say that and i did review the evidence and so why isn't the right remedy we have a hearing now why why not have a hearing on hey b s about whether that's what i for would have said that i would suggest the a proper remand would not be in the context of a k b s proceeding were there stricklin requirements would come into play it would be for a determination  as to whether substitution should have been made here and if the substitution should have been made here then he gets a new trial because he should have had a different attorney and there's no way of knowing what that different attorney yes several things st of all mr sankey and his motion to he's not communicating with may he won't even review the evidence with me because he thinks it's too disgusting that at the pretrial kind of an inquiry as the judge was required to do in open court so this this was made in a motion but then the judge does hear from the attorney and the sense that the pretrial conference he confirms what mr sankey is saying he says mr sankey wants me to follow motions but i told them no you filed your own motions you don't get more motions now that's wrong as a matter of law it's wrong as a matter of his representation and most disturbingly he doesn't even know what those motions were he has to ask the prosecutor what motions mr sankey file and then it gets worse because he actually proposes to the judge that he file a motion a bogus motion in which he would  stand simply ask for permission to file additional motions but he doesn't want the judge to grant it he wants to deny it and he would then go to his client and lie and say i tried for you i tried to get the judge to let me so at that point i would submit the judge really doesn't have discretion at that point mr com referred should have been removed at that point he gets a new attorney and there's no way of now knowing what the results of the trial would have been with a different attorney that's what the supreme court held in gonzalez lopez that's why a prejudice analysis is an appropriate here and it's considered structural error i would rather question who do