a ineffective assistance of counsel claim but this is this is a rare case in which the ineffectiveness of counsel is evident from the record at  binder the c p a for whom ms kaylor worked and i ask you yes just looking at the at the record it doesn't seem that  motion for bail pending appeal directly to the second circuit without raising that issue in the trial court obviously if that's binding precedent then then then this motion has no legs but if it does have legs if we do have the right to bring this motion now i think that the that mr i invite her was a key witness and the reason he was a key witness essentially was that miss killer's principle defense at trial was that she was unaware that the bridge loans that she was safe investments that she was selling to investors were based were false or fraudulent and that the representations were fraudulent she was unaware of that and the government's one of the government's principal themes and principal pieces of evidence was that miss kaylor was a bookkeeper started as a bookkeeper at this company and got a world she spent two years going line by line going through bank statements entering items into quick books and she would have recognized given her experience working as a cat for an accounting firm and given her the government called it a business degree it was a marketing degree  but that she would have recognized this that this was a ponzi scheme immediately and this was highlighted in the government's opening and then the government's closing they went back to it and the only reason that her experience even got into trial was that trial counsel stipulated to allow a draft resume showing that experience into evidence without any hearsay objection so that the government could say look she worked at an accounting firm and had trial counsel just merely contacted the accountant the c p a who she worked for who was a victim of this fraud he would have given the testimony that  was provided in the letters in his letter to at sentencing and in his affidavits submitted to this court which was that miss kaylor had a fairly rudimentary understanding of bookkeeping and accounting principles that her sole job was limited to data entry and that miss keeler didn't have an understanding of finance  and that mr i nd binder who had met with the leader of the scheme mr nicholas kosmos several times was fooled just as much as he believes did her binders financial binders relating to the bridge loans that were accessible to her that would have shown that the amount raised was much greater than the amount in the bridge loan bin that that goes i think that that goes to what mr i and binder would have testified to that her financial understand her knowledge of financial concepts was at best rudimentary thank you good morning your honors in may please the court my name is bradley king and i represent the united states in its opposition to the defendant's application for bail pending appeal in accordance with the statutory presumption codify it in eighteen united states code section three one four three subdivision b the defendant should be detained pending her following her valid conviction for knowingly lying to investors to get them to invest in the massive a gaap a bridge loan ponzi scheme this conviction was supported by overwhelming evidence and this defendant has not presented a substantial question concerning the alleged ineffectiveness of her counsel in failing to call a single victim of this defendant's crimes who had also previously employed her to testify about her accounting background court however we would note the government would note that that rule has not uniformly been applied in all cases in which the initial application was not made in the district court with respect to the  i mean we could we could hold a motion in abeyance in senate back to the district court judge on this record the governor would ask the court to decide the motion to to hold that this defendant should be detained without harming the normal course is in more cases than not clearly more cases and not the normal process is the senate back to this trick or you can find exceptions but isn't it isn't it the practice where something is made up prematurely to send it back to this record it could be held in abeyance judge and that is that that may be the practice however other government would just note that there have been  situations where that rule has not been uniformly enforced and given the posture of this case where it's clear that this defendant could not satisfy the criteria for bail pending appeal we would ask this court to deny the motion on the record before we could do it i suppose what happened are where the court denied the motion without prejudice to making such a motion in the district court as between the two what's your what's your view judge the government's position is that this application should be denied and i serve but it's ok if you deny but without prejudice if we if we don't agree with you if we think that the better course is for the district court to look if the if the procedural posture is such that it has to be first brought in the district court we would ask that the court hold that it be denied and that perhaps it can be brought again but we would ask the court to deny it because the statutory criteria have not been met here there's no substantial question concerning the effective assistance of counsel because the evidence against this defendant was overwhelming the evidence that she suggests that the defense counsel did not secure for  trial the it witness that she suggests the defense counsel did not interview would not have provided any evidence that would have changed the result of this proceeding and that's because that witness was a victim of the defendant's crimes who was defrauded by her who questioned her about  not this was a ponzi scheme following her affirmative knowledge that it was when she got an e mail from the scheme's architect saying that all of these bridge loans are in default bridge loans that this witness was invested in she didn't tell him that we know why she proffered with the government she explained that she knew the significance of that e mail and she didn't share it with any investor including this purported witness because she knew that it would hasten this the collapse of the scheme and her ability to make future commissions and after that you know has received she raised another million dollars in commissions so there was overwhelming proof details in our papers concerning this defendant's guilt prove that went beyond any background that she had in accounting  firm but in addition to that any decision to not call this witness would have been a wise strategic one hundred circumstances particularly where the government could have brought out the proffer statements that would have further establish this defendant's guilt