to object to an obvious construct of amendment of count one of the superseding indictment there are two ways in which he must prove the strickland standard deficient performance by counsel and prejudice  as a result he can prove the strickland standard for each attorney but logically it makes sense to focus on the trial attorney because that's where the error originates as for whether or not trial counsel's performance was deficient we can look to the plain face of the statute the very well established law of constructive amendment at the time of trial and counsel's own explanation for his failure to object at the time of trial the principle prohibiting a construct of the moment was so clearly established that this court had already long held that a failure to object that the jury instructions tracked the statute will ignorance on a fundamental point of law is no strategy at all and that's what the statement represents what is really his returns are irrelevant aren't very if we're looking at a reasonable attorney standard looking at an object looking at this from a metric to standard correct i think it further illustrates though that he you know at that time he's responding to mr fees twenty to fifty five petition and he has every incentive to explain what research he conducted and he doesn't even identify that there is a constructive amendment he simply says the jury instruction on the separate subsection which mr fe was not indicted on basically track the statute that's not what the law of constructive amendments says it's part of it is usually an instruction and added will track the law the problem is that mr fee was not indicted under fifteen anyone see the government chose to indict only that he knew that he had knowledge that k r was a minor and so  deviation between the indictment and the instructions is so obvious that it does fall below the prevailing performance norms of counsel at it's an oddly written statute it is and under the ought the the further out of the here is by this all coming to us post conviction we have the benefit of our courts direct appeal of fermat's of the conviction so to turn those two observations into questions does the direct appeal decision and its conclusion that the law was unsettled privette a finding of strickland ineffectiveness no it does not and and does the fact that the statute confounded everybody for a while everybody meaning the government keeps charging the st and running into constructive remember problems does that create any impediment to saying well why are we going to blame the lawyer if nobody else could figure it out those are two knowledge that the victim was a minor when congress amended it it didn't delete knowledge it simply added to other ways of proving that fact reckless disregard or a separate statutory section which is  only a result reasonable observation so even based on the log of fifteen anyone at the time there's always there's a there's case law out there that that reflects knowledge has always been an question what was raised on direct appeal was essentially a due process claim a question about whether or not five hundred and ninety one c was a freestanding way to prove the statute strict liability correct and incidentally mr critz or the appellate attorney simply restated the losing argument and robinson which had been decided and counsel for lied on in his opening brief robin states the very plain face of that statute creates three separate ways of committing the crime your position on that st question then is right or wrong or model it really doesn't matter the issue is has the government broadened its theory of prosecution beyond what the grand jury returned and beyond what your client came prepared to defend correct and the court has never required a very clear holding in order to evaluate performance standards what about the cars the decision because the district relies on that the government cites it but you haven't yet responded to a do you address it in my reply brief guards guards that is unpublished and provides little addressed ineffective assistance of counsel the issue turned on a interpretation of a statute which was st impression the court says we don't need a direct holding on that in order to find efficient performance because of all of the available resources at the time which would have made the claim at issue plausible and so looking at this case all of the available research including a basic reading  the statute made constructive abetment extremely plausible there's all bells and whistles should have been going off the moment the government announced expressly we're abandoning our theory that he had no care it was a minor that should have set off every bell and whistle and in fact there is on the record at twenty one to me to after mr few was sentenced had already exercise his right to appeal there was an untimely motion for a new trial and new counsel was appointed to pinch it essentially for that hearing and on the superior is you've got this new trial counsel who's coming in just for the purpose of this hearing and he says you know the media issue here is the fact there's this discrepancy between the indictment and the jury charge and i completely disagree with the government but they can just change the indictment by choice so we've got evidence that another attorney is obviously able to understand the basic fundamental principles of law and apply them to the facts of the particular case they have not directly answered your question yet about whether or not the standard for prejudice under strickland is whether there's a reasonable probability that but for the error a jury could have found reasonable doubt as to guilt if they had been instructed on but if only no has said oh yes constructive amendment but not plain they are and aren't they mostly looking at the evidence that was submitted and saying no miscarriage of justice and i missed the st part of that question to circuits at least have said yes there's a constructive indicted for knowing more recklessly disregarding of those courts when they affirm our affirming on evidence as to the count with that was charged and he came prepared to defend is that your argument for ect those other courts have the benefit of a lower standard for knowledge to apply the facts of the case to you and we don't have a record that that prevents prejudice and this in this case the government had no incentive to put not evidence of knowledge because it it's all positional is it doesn't matter we just have to prove reasonable good with hypotheticals but i'll try one let's say the underlying crime require death be proven but then congress said in a  subsection if there is evidence that the victim hasn't been seen for seven years you may presume that the government charges just death then government in jury charge conference says your honor we'd love the benefit of that eviden presumption can you tell the jury that's another way to find it no objection to we have a constructive amendment and stricklin ineffectiveness these if this is in fact some odd little evident tree presumption rather than a different theory of liability i think it does because there are multiple ways to prove construct of them and one is if the government changes its theory to convict on a broader basis even a broader factual basis correct and and  have we have that here i mean in fifty nine who won there's a factual scenario that's very possible that someone knew someone was a minor without ever being in the same room to observe them so it makes sense why congress decided to give the government so many tools in its tool bag for for bringing a charge in this case the government chose knowledge and it needed to be held to that standard absent an amendment by a grand jury it can't just say forget that we're going to go this easier route that's what the that's what age that was the evidence throughout the trial is that she regularly lied misrepresenting that she was age of majority and so when we look at the strickland standard it is absolutely reasonably probable that the that the jury would have found reasonable doubt that mr c knew she was a minor if they might have found reasonable doubt that she knew but it's almost incontrovertibly if your client admitted to having sex with the what young lady that she did reasonably observe her so is there any way to say here there couldn't be prejudice because as to a valid theory of guilt it was undisputed but this court makes clear in its direct opinion that there was no evidence on the record of what she looked like we don't know what she looked like she has without even be an allowable way for us to say no prejudice no prejudice inherent in he wasn't charged and knew about yes yes in fact when and when the court discusses the jury's ability to look at the  minor it's under a reckless disregard standard not knowledge there's no finding by the score that there was sufficient evidence that he knew so when the court the court has a the ability to look at the it's the strickland standard on ineffective assistance of counsel for failing to convict on a construct of a minute what about to set do you draw any support from doucette is a great example because it and ninety three very clearly outlining the different standards for how a person can identify and analyze a constructive amendment claim and then as i mentioned warres is also very persuasive case because it clarifies that there doesn't need to be a clear holding on point in order for the court to evaluate deficient performance and prejudice good morning may it please the court merab lot for the united states as happily in this matter your honour's fee is not entitle to twenty to fifty five relief in this case because he cannot demonstrate that his counsel either trial or appellate was ineffective or that he can demonstrate prejudice as defined by strickland i st want to address trial counsel's performance and why he can't meet that standard clearly stric is set it says you have to view what trial counsel was thinking at the time and what he was seeing at the time of the facts of the case and at the state of the law at that time this is a central tenet of twenty dollars to fifty five dollars of them that fi refuses to accept you know i think she does accept it she says the trial prosecutor charged a high standard that the defendant had to know the woman that he's a have prostituted was under eighteen the government chose that factual theory then right on the paper in the jury charge the government says court we'd like to abandon that we don't need to do it and then in the new trial hearing the government says yeah it really helped us because it made their whole argument about her allies about her age of no moment so that's just a classic construct of memory you have a tough theory of charge you hear all the trial evidence it's closed they defended it all on the theory of she looked old she told me i'm old she told the police i'm older websites and she's old that's his entire defense but then the government says that's a little difficult we we now see subsection b and we didn't have to charge knowing and prove it and their whole defense didn't matter ladies and gentlemen the jury because we want to substitute a different theory that he saw her and that's all we have to prove how is that anything the other than the most obvious it construct meme because what the because that was what the government argued to the court that's what exactly that no the i could before the court so that you could i think that this little hand down helps demonstrate  what the what counsel was looking at at the time and the indictment went to the jury exactly the way it was the court did not eliminate the knowing about the age requirement that he had asked the court to do the indictment read jane knowing that jane doe had not attained the age of eighteen years and that was read to the jury if you think that's confusing and i'm very confuse the government you're saying when the district court says here's the indictment that's just the government's accusation that somehow the government's accusation trumped what the district courts that the law was the jury somehow knew that the government's accusation would trump what the judge is telling the jury the laws well the instruction itself though an aside from what the indictment was read the instruction itself also included instructions about knowing with regard to the recruitment part and knowing that just that i'm sorry let me take that back let me go back for a  this instruction included the knowledge of the age of the juvenile on that instruction said that if the defendant if the government proves beyond a reasonable doubt so the burden of proof hasn't been changed here that the defendant had a reasonable opportunity to observe the person then the government does not have to prove that the defendant knew that the person cannot attain the age of eighteen years when you look at that instruction and it is a confusing statute but when you look at that instruction in relation to what he was charged and the fact that the jury was also charged with regard to knowing this and what that meant and the fact that sees own counsel argued to the jury the government hasn't proved that he actually knew the government kept arguing in closing we don't need to and after in the neutral hearing the government support that helped us well it may very well help the government but i think at the time there was no law that indicated what the purpose of fifty nine dollars b c five thousand and ninety one dollars c was in relation to this entire charge and in some senses that's still very clear now but there was absolutely nothing at that time to indicate to counsel that that might have been the case or even of subsections three c is squirrelly either evidence or alternate legal theory that doesn't matter for constructive in them it doesn't you could even have a valid legal theory alternate the government can't jump to it because it's having problems with the storage do you agree well yes i mean theoretically yes theoretically on the basis of construct a meme and i agree with that but but the point is here that we are we're past we're past that the the fact that that defendant is arguing  that they don't need any law at all that you just had to look at this on its face i don't think it's clear on its face at all in what the relationship is doesn't matter whether it's clear on the face what the relationship all that matters i think is do you charge one factual method of proving see enter and you chose to charge that this defendant knew she was younger than eighteen and then do you convince the district court to say to the jury you don't need to find that he knew just sounds like you've broadened the indictment you may have taken on more subsection she may have been available but she didn't charge him how could it wasn't even clear at the time that you could charge that as as a separate cause of action and and that doesn't mean you can switch to it when you're having problems and well i don't read history trying and it's not it's i'm saying that it's not even clear that that was a switch but i thought the government used the word substitute we want to set that one down no that was i think the word substitute was used in relation to taking the word knowing out of the indictment because the that the jury's still had to find knowing it's certainly still had to consider it absolutely and and the fee court itself only just redid the fisa court itself said because  jury saw that now they're talking about the evidence but says because the jury saw and heard tell our trial and was in the best position to determine whether fi knew knew actual knowledge or acted in reckless disregard which of course that's a whole other dimension to this that makes it a little bit more difficult but because they rejected the reject the reckless disregard as referring to age but it says  new or acted in reckless disregard of the fact that k r was less than eighteen years old there was sufficient evidence to support the conviction i think the court there is saying it could have happened either way it could have happened that i mean that the evidence supported an actual knowledge theory and it also supported a reckless disregard and then in another part of the opinion they say there is also evidence that would support a finding that fee had a reasonable opportunity to observe k or never see what's crucial to escape the situation the government's which is there was evidence of knowledge that she's under eighteen it says there was evidence of reckless disregard not charged by the government as evidence of reasonable observation observed not charge you would have a strong position if they added and there was but i'm saying that language right there at page two hundred and sixty says that he says there was no evidence yet it says because the jury was in the position to determine whether field knew knew or acted in reckless disregard of the fact that k was less than eighteen years old there is sufficient evidence to support the conviction so i think the jury did get to dent did get to consider that series that siri was considering but that the government's telling the jury throughout is close you don't need to find knowledge let me to consider that you just have to decide whether he observed the one actually i think it's a little bit more nuanced than that because the court because the government says you know if you find if you find and that's actually what the the the instruction itself for it if you find that we haven't proven actual knowledge beyond a reasonable doubt don't worry about it because you can still go to the prove under a reasonable opportunity sciri i don't think it is obvious and i think there were alliance on what i is is not correct what it was was easily distinguished by the facts of it of that case because there the the trial counsel actually admitted he had not he had no knowledge whatsoever that there was even such a thing as the law of derivatives that isn't ship he it made it that he made a mistake in allowing the guilty plea and he said if i had known if i'd actually known what the law was he would have moved to withdraw the plea that is not the circumstances here but if you are looking at the affidavit it's even more baffling here the trial counsel said well this was a good law it's an alternative valid law subsection c works too but that's clearly a construct of a man a violation if you just think oh well the government would have been able to charge a different theory right  ignorant about my observation is this this fellow his affidavit is far worse he seems to think there wouldn't be a constructive memon as long as the government does somewhere can find in a valid legal theory they can jump to it but again i don't think that that's the situation that was actually presented to him at the time you may that's jumping back to earlier you know that we are looking at this council you agree that would his affidavit answer to strickland makes no sense i think it may very well make sense when actually look at what he saw at the time that he was looking at the the instruction and the indictment and the way that the court charged the case i think there was still the possibility and he himself argued to the jury that that the government had proved actual knowledge as well so i said and and that and the construct and the sorry the knowledge of the age of the juvenile instruction is premised an if if the government hasn't proven beyond a reasonable doubt actual knowledge so i don't know i really don't think that it was clear and certainly the fact that there was literally no  law on this point and if counsel wants to say that garza doesn't apply because it's an umpire blissed decision you know only thing that was even out there and i'm not even sure it was out so to speak but it was a magistrate's opinion from the wilson court i think which is i think in the th circuit and and in that case you know the court didn't find that it was a strict liability theory i mean the point is i think the put i guess a point they're not saying there's nothing out there they're saying there's everything out there do set for example government charges assembled machine gun as what they have to prove then they get to the jury charge conference all the evidence is in and they're thinking o'boy this is going to be hard for the jury to accept the law allows us to get them on the same crime if we just show parts to a machine gun court instruct them that that's equivalent to a machine gun that seems exactly analogous to hear the government chose to take a higher  prove charges that he knew she was under eighteen gets to the jury conference thinks oh boy thank goodness the statute gives us an alternative he definitely observed her and they choose that the court gives that and your answer to us is a defense attorney doesn't need to object to that switching horse in the middle of the river because what give it as clearly as possible this lawyer didn't need good jact because finish the sentence and give me that supporting authority this it this lawyer didn't need to object because strickland standard is the standard of reasonable attorney and there was nothing to trigger anything and he at that point that would tell him this is this is a prove knowing under eighteen and your whole trial defense has been this lady lied lied lied to everyone about it so it's reasonable for my client not to have known it and then you suddenly hear the jury's going to be told you can convict not because the defendant knew instead because the defendant slept with her and he had how does any lawyer not say that's not what i defer got ready to defend against well i think the the whole point is that all of that evidence all of that evidence is what the jury got to read and ultimately the says all of that was sufficient and fi says it was sufficient even support the actual knowledge if we did say that if defense counsel said you've got enough evidence to support actual knowledge my guess is you're going to when we'll hear from those in counsel if he conceded in closing argument to the jury that there was enough evidence to convict him on the charge they were here saying  rock solid in order for something to trigger in the mind of the defendant and again i think there were lines on what is here is completely misplaced solely based on the facts of and the fact that there i mean the the the the attorney admitted his complete ignorance of what he was doing what about the reliance on recalled nine hundred and eighty four they cited i don't think i saw in you is think it would have been a guess and a guess is not required what is is not what strickland requires you know a guess would have made him the shortest the sharpest pencil in the box but strickland doesn't require you to be the sharpest pencil in the box it just requires you to act reasonably in terms of what the state of the law and the facts were at the time that you were analyzing the case let me ask a qu are not contending that i'm sorry let me let me just go back a nd to gray because that's the case that they cite in support of it we're not saying that it's prejudice that's why lockhart in fulton and boo boo hoo show were also important cases and that's why we rely on them because they say if you're this is that now speaking and we have the fi court saying that the evidence was sufficient i think that is binding on this court in relation to that finding i think that precludes prejudice however let me address grey which is what they cite and fifty five haitian seeking reversal of a state murder conviction where there was well established law about what the elements of that cause of action were and where the state conceded but at the time that was a complete unknown and for those reasons the government contends that there was he that the cannot meet the strickland standard and that the district  a few quick points starting with the gray there is a deviation there between the jury instruction and the indictment and the other reason it's a helpful case is because it reminds the court that in fact jurors are  appeal opposing counsel is relying on a summary what i would call a summary paragraph at the end of two hundred and sixty dollars and i would like to point the court's attention to the beginning of page sixty were fairly very clearly says we conclude that there is evidence from which a rational trier of fact could have found beyond a reasonable doubt that he caused k r trying to gauge in a commercial sex act and reckless disregard of the fact that she had not attained the age of eighteen there's also evidence to support a finding that fi had a reasonable opportunity to observe there's no conclusion regarding knowledge as for warres i think it is instructive because it clarifies that there doesn't need to be  direct holding in on the interpretation of the law and another case that would be excellent to look at is also cited in our opening brief in our briefing it's our car thorne from the th circuit which very clearly distinguishes the plane error standard and what's required for playing us versus what a court looks at under strickland which is a broader view of all the law available at the time of counsel's deficient performance i have a mixed strickland remedy question the government proposed this strict liability at the time observation theory a week before the jury court was going to instruct the jury is it possible defense attorney thought i've got a strategic opportunity not to object because if i object at this point the government will dismiss supersede there's no way i can win an observation i slept with the girl therefore the government the defen attorney strategically let's at stake confused to the jury he still argues as the indictment said you have to prove knowledge then we get up to direct appeal all the way to post conviction and here is my remedy have to the question if you prevail on  the government re indict on the observation theory would it have to only reinvited on the knowledge theory and regardless are they out of time to do either one to the st question st which is  if there was any strategy counsel had every incentive to express thought in response to the twenty to fifty five petition that has never been argued by the go no ok so go ahead on the remedy issue what happens now if you wi fully sure i'm aware of cases that give aid to read of time for the government to consider about re indictment but i have not i'm not up to speed on what the  the two that would come to mind would be are they stuck with the original theory or not and the other would be regardless it may be academic because too much times past in the camp but there may be that lag time i felt that was in the law anyway keep going you have a minute left the was not cited by the government because they did not address construct of the moment law at all in their response just call the helpful is valuable it is because it very clearly establishes that failure to object to a constructive amendment is deficient performance and ask for full on the sufficiency analysis there doesn't prejudice standard is very clear if rewinding about thirty seconds we do know or we don't know whether too much time has passed i don't know i don't know the answer to that  the conviction came down in two thousand and twelve and he's been incarcerated since then and i would have to research that answer would you mine i will  whatever it wants you to be creative and give us your answers too if defense prevails one thousand five hundred and ninety one dollars we're just we want to be edified obviously if you deserve if you deserve to prevail you prevail and you both will do what you have to do afterwards time or not