substitute counsel the this case involved a thirty seven and a half million dollar restitution order the case was prosecuted on two fronts it began as a civil case prosecuted by the federal trade commission and ended in a criminal prosecution the civil case resulted in a thirty seven and a half million dollar judgment against mr tapes and a receiver was appointed to collect money for the victims the card the credit card holders the district court refused to credit mr taste with the twelve million dollars and at the time of sentencing him the government turned in the money over to the victims not yet it was in the hands of the receiver and the government obviously we go back to the district court in the first instance it seems under thirty six sixty four that that would occur although it's questionable because what thirty six sixty four provides for is post  sanitary distract not only got criminal restitution orders but also got a civil restitution judgment i mean a simple yes simple up a civil judgment rather and a receiver was appointed and in that case the district court refused to credit the well but it's a problem now because the receiver already has the money and the we don't have any he mr chase has obviously no control over what the receiver does with the money in fact it's questionable i mean another thing to point out is in this case the probation officer didn't even recommend restitution because there were some of that sense for such small amounts of money that it was if you did it's impractical what i'm saying is some say the restitution orders thirty seven million dollars whatever gets distributed to the already recovered twelve million dollars so it doesn't reflect the facts on the ground at the time of sentencing of the victims and recovered anything about the receiver was standing in the shoes of the victims and that's that's the the point here i think is that the receiver this is not  time i mean i wouldn't expect the district court to calculate any speculative credits off in the future it out some money that they may or may not have recovered from of want to watch a checking account but the fact is just at the time the receiver was in court and said yes we've collected twelve million really cure counsel repeatedly asked to be relieved by the time of sentencing the attorney made clear that he would not meet with mr chavis he would not talk to him on the phone he would not send his paralegal to meet with him he was only  to communicate with him in writing and apparently that not much under these circumstances the district court did abused its discretion in refusing to substitute counsel i have so little time i would like to if you  trial attorney is no longer in the criminal division of the u s attorney's office so i'm a member of the criminal division and i stepped in as first of all let me just confirm that the government agrees that in an line really that is appropriate here because we can't determine on this record what the district court would have done in an advisory system defense counsel press correctly points out that the police greenman here did provide that the parties agree that payments made by or on behalf of defend it to the federal trade commission with respect to the commission's money church meant would be credited to his restitution obligation however the district court was not bound by that stipulation and on appeal the parties are permitted to argue that the district court's findings are not in error so i would say that the defendant's interpretation is an interpretation that is consistent with the facts to the extent that she marshaled facts to support the idea that the receiver was c last week and what i was advised is that the f t c is still in the process of attempting to repatriate approximately eight million dollars worth of funds and when that is completed they do intend and i think they usually do this through some kind of third party was think that under three six six four say to that would be the appropriate procedure that the statute provides that any money that a victim has recovered will be reduced from that the restitution  be required to pay towards the purpose of this statute it's as this court has interpreted it is to prevent double recovery at this point there is no double recovery certainly there shouldn't be a double recovery and three sixteenth's forty two would require some kind of reduction to the extent that a double recovery would occur but the government would submit that the district court did not air on these facts in determining that as a factual matter the offset was in all honesty i don't know the answer to your question in the civil proceeding my understanding is that the the court's order recognizes that there may be money left over and should require an offset in those circumstances and there's obviously not in front of us today that it isn't and with respect alone now i don't think that case is on all fours i think the problem is we fall somewhere in between because the situation in loam hour was that the district court had ordered restitution to be paid to the receiver and the government's argument was well really it's the ratepayers not the sanitation district who are the victims and this court said no in this case the sanitation district actually was defrauded the sanitation district itself was the victim so if the sanitation district has received that money there needs to be an offset you know our case the f t c is not a victim the f t c is supposed to according to the restitution order in this case the money is supposed to be paid to the victims of the offense through the receiver so the receiver is a conduit the receiver is not the off that may be greater than what the defendant is asking for it may be if that money is repatriated turning to the substitution issue i would first point out that in this case the defendant never inquiry and whether there was a complete breakdown of communication this court has to look at the entire course of conduct over three and a half years from the time of plea until the ultimate time of sentencing those to advance in october of two thousand and three and february two thousand and four has to be viewed in terms of the totality of the inquiry and whether there was a breakdown in terms of the relationship that this defendant had had both with his prior whom the court relieved and with current counsel with respect to the inquiry i would point out that in george and smith this court noted that the district court is not required to on every occasion conduct an inquiry when the defendant makes repetitive complaints against counsel that either have already previously been addressed or essentially as the district court determines here are made for the purposes of delay and that is what the record shows here because we see that over the course of a year and a half from the time of the plea and till the time the first is almost a year and a half until the first counsel is relieved we have a consistent dispute from the first sentencing date that was continued and continued and continued over whether the defend is going to move to withdraw his plea or whether he's going to try to escape the stipulation in his plea agreement as to loss alternately the district court believes mr first men they stickley because the district court in the government sort of agreed to accept his representation that there's a conflict but the district court says i'm not going to let this go on and i'm not going to let you create this conflict with the next council so what happens the next council comes aboard and at the very first conference in february of ninety two thousand and three we have the same problem mr bachmann says well my client wants to escape this stipulation and we're going to see if we can work with the government to try to modify the clique remit that effort proceeds the government is not amenable to a modification into law i have two thousand and three there's a motion by council to basically ask the court unilaterally to modify the plea agreement the district court denies that and the events that the defense focuses on happen after this point after the district court has ruled two years after the guilty plea no you may not escape from your plea agreement stipulations unless you want to withdraw your and if you don't want to withdraw your plea then this is your plea agreement so what we see happening at that point is the defendant essentially refuses to accept the court's ruling and in october  thousand and three defense counsel comes forward and says i need to withdraw because my client and i can't agree what to do he he doesn't want to abide by the stipulation and the district court says counsel that's your decision that's a tactical decision you don't need your client to the inquiry because that october two thousand and three hearing is the one where counsel spoke and indicated that there was this tactical disagreement and defendant was not allowed to speak so there the focus is on whether there was an inquiry and the government's response is well really there didn't need to be an inquiry at that point because there had been two years of inquiry before the act and then at the next hearing which is in october of two thousand and four the defendant is given an opportunity to speak and says i want to continue working with this counsel and i understand that i'm stuck the final problem happens in february of two thousand and four when essentially defense counsel says you know i feel like you know he's filed a complaint against me and i don't consider this to be tenable what i would point out there is again there is not a complete breakdown defendant did not ask for his counsel to be withdrawn he said can't you know the defense said i will dismiss this bar proceeding i didn't realize it was going to be such a problem i sent this letter before last as conference and i'm sorry i would have withdrawn a but it was already in the mail this is it e r one thirty one one forty three he says when we communicate we get something accomplished i like cancel again what is the problem with the senate has he has two problems one he wants to go ahead with this last hearing and two he's upset because his counsel doesn't come to see him when he comes to see other clients over the course of the hearing the district court of both of these problems the district court explaining to the defendant what your your expectations are unreasonable you counsel to come and see you every time he's at the metropolitan detention center he has other cases he has other clients he can't see you he can't be your unfillable cord which is the term of the defendant used if there's nothing happening in your case and with respect to the second issue you know again the courts said i told you we're not having a l hearing you may have heard that at some prior hearing and you may have had this false hope and the defendant said i understand i've been going on a false hope i understand we're going to war with you were far fewer couple minutes so again this is a case in which there was a difficult client there had already been one substitution the lines of communication were still open there was not a rare and irreparable breakdown at sentencing the defendant received effective representation and he communicated wanted substitution i want to point out the district court began these hearings by saying things like you're either going to be sentenced with mr blackman or pro se so before you ever heard from mr chase including in the last hearing at the end of breakdown these are the kinds of things that mr backman said about his client i might as well go ahead and conclude my representation because i know what twenty to fifty five is coming down the pike he said things like the man is abusive i'm sorry but mr defense lawyers would think that abusive and he was not the easiest client there's no question about that but that does not mean that he has to go forward with proceeding with an attorney that's not willing to work with him  district court you know i understand the district court appears to have been quite frustrated with mr tapes but the district court started off these hearings saying things like and this is from the beginning when when he was considering whether to release mr freshman or not you know i don't really think you have a conflict i think you're doing this for example a all sorts of things i have to say the district court appears to have prejudged this in some respects and certainly that comes through very strongly when in