i think most of what needed to be said i have said in the briefing i think that any attempt by the court to utilize stricklin analysis of the incomplete record in this case would be a miscarriage of justice i've tried to establish that in the briefing i don't think the government succeeded in its response to the brief in addressing the core issue which is presented on this appeal which is the need for ever denture raef hearing fact finding to determine whether or not this claim of sleeping by defense counsel is an error is such that mr scott was deprived of effective representation on the s in the record the government points up you know the fact that as the record presently stands there's no concrete evidence of sleeping but as i illustrated in the murder case and of course by directing the court's attention to poor which is a living case in the circuit the whole problem with attention to engage in a strickland style analysis based on an incomplete record is because the record doesn't show whether or not there wasn't fact an effective  during some critical stage in the proceeding that he was without representation the guilt the stages in the proceeding when the defendant's guilt or innocence is determined of course critical stages so  sleep through that's what i've grown for which is that that that he slept through but we don't know yet at this stage yes that's that's the problem well i know and we don't know that about anything else on which there is no evidence but the fact remains that there has been an allegation made in an affidavit which must be accorded weight and it's not it's not as the other cases the circuit has decided relating to these issues where there's been a denial of  twenty two of a hearing on a twenty to fifty five if you based on what you might call a fair unsubstantiated conclusion that's the difference in the other cases there have been and what the court determined to have be conclusions because they were essentially self serving statements by the defendant himself we don't have that in this case and as i pointed out in the briefing i came into this case a little bit later on for the purpose of the twenty to fifty five appeal i recognize the significance of this issue and it may very well have been subjected to much more development in the earlier stages proceeding but on for unfortunately we you know it that wasn't done but that should the rule seven eight but that could certainly be done i would urge this courtroom and for the purpose of let's have an entry hearing because i believe that although i can't get into those issues of the stage i believe there could be a significant number of witnesses who could be called to present evidence real you know directly relevant to this issue jurors a courtroom personnel witnesses in the audience co defendants other attorneys who witness the proceedings the prosecutors  and i think that he just needs to have a chance to to get to that stage you know we're not asking for a new trial all we have on their record instance once ten spanks one lawyer well it's not all that's not all we have your honor we do also have as i put it out of my brief there are some other statements that must be read in the context of mr scrope statement that statement spike as a matter of fact a statement attributed to the press to the prosecutorial team by both attorneys and are both  extent to the effect that the prosecutors were questioning mr warmers competence during the proceeding that's something that i think is highly unusual for a prosecutor to make in terms of a comment to opposing counsel during trial we've got warmer  on declaration where he states that he has this habit of putting his head down and rubbing his eyes which i drew to which i drew an almost exact with the statement of counsel and burgling you know that was a murder case and the guy was claiming that he was putting his head down and was there should have been a motion for in connection with a piece of evidence that was introduced that you know i didn't go into it on the on the brief because it was kind of you know going beyond where i wanted to go with at this particular stage but  gloss the government attempted to place on the facts of this matter you know essentially they're a poor cousin to any actual substance in the courts uniquely positioned to be able to to allow an expansion of the fact that you didn't notice anyone sleeping doesn't mean that he didn't sleep or that he was asleep in some critical stage when perhaps the effect of council could have changed the outcome of the proceedings now  strikes me as a little bit different in this case is you have three more years between the three people who are accused of committing the same crime they all received saying result right ye and two of them say the other guy is real bad and he slept through it and you cannot identify for us anything that the other two did that he should have done or anything that later on now does that tell us he was sleeping when and when that event occurred or that he was awake and just waited until the end of the data presented that doesn't tell us much now if we could focus on something that it's more your slept through not suggesting that but it would it would give us sort of evidence real every wouldn't not all i see i see the most motion i see it a complete lack of any effective director cross examination of the government's banking witnesses which my particular client had a direct implication it was he was  finance guy for this operation and he just didn't do his job all right thank you morning runners may please the court mike mcgarry from the department of justice on behalf of the united states of america i must like you just kind of jump right into where the just the court was as far as the the m  motion what we're talking about and it is actually it is before the court because the twenty to fifty five which this comes from alleged about thirteen different different issues not all of them were sort of fight for appeal ability so perhaps it's not to jump up and object at that point when you say a codefendant is going to be selling marijuana could arguably much more attention to it and have any sort of you know prejudice flow over that defendant so i think a wise trial strategy would be to the district court is in a good or perhaps the best position to observe the proceedings he's not preparing to ask questions and i have never sat on the bench and i know there's a lot that the judge does but the judge is literally so as to see the entire at least for the next five minutes your honor but the district court looked at the transcripts and found times where he was cross examining people where he was you know asking questions there are points where and the judge and why that's important your honor is because it actually goes to the weight as to be afforded the one sentence about sleeping and i think judge reed actually mentioned that in one of his opinions so i think the reason why that point is important and why that you know helps the government's position is that he is conscious he is you know listening he is there and he is present whether or not he is you know you know working on other matter question to give significant weight to the to the to the judge's statement that he frequently observed counsel and he did not observe from sleeping the fact the judge frequently observed him never observed him sleeping issue the marijuana issue and i think the record supports the council was awake during that because he made a motion for severance and for a mistrial after the fact there also was in there no there's no evidence in the record that he was asleep weather was hearing held the original trial judge disqualified himself from handling the twenty to fifty five and the further appeals so the case was reassigned to a get another district judge and assigned to a magistrate for reporting recommendation and in that situation the magistrate decided to have a hearing in this case judge still with the case that his recollections hold and carry much weight thank you very much thank you counsel if you have something you want to sleep because if you look at the transcript related to the hearing to determine a surrender date which was nearly two years prior to a judge to reach ruling on the twenty you could be five he said he wasn't sure about he was acting under the assumption that the record would be expanded by additional evidence to be deduced in the future hearing that he conducted on mr scott's twenty to thirty five motion i clearly see how his his memory could have gotten better in the intervening nearly two years i just don't i just don't see it and i think that as i said in my argument previously this court uniquely positioned to rectify which could be what could be a wrong of constitutional dimension we just don't know that at this point and i think that it's appropriate for re