course good morning my name is leslie bahman and i'm here on behalf of the appellant mr luis enrique gonzales i would like to reserve four minutes for my rebuttal your honour's there were a number of woman was was to be called as a partial alibi witness on behalf of mr gonzales and there was a proffer that was made to the court by counsel that had she testified she would have stated that she was occur and your honor i guess this carries over a little bit into my argument about the ineffective assistance of counsel but he just closed a couple of things one is i did file a rule twenty eight j letter today and i regulation that was just passed in the month it's not completely reciprocal in that the government doesn't have the same type of time restraints and also the government specifically states that it will not  facts that was sent on december twenty fourth or at the most five days late but in any case the witnesses were disclosed prior to trial and there were remedies that were far less harsh than the exclusion of the witness's testimony and especially in a case like this there had already been three continuous and says granted the motions had been unopposed and subsequent to  subsequent to the discussions there were also two additional motions to continue that were granted one of them was after the prosecutor could go on vacation it was granted for sixty have required a continuance a very brief continuance of either a day or five days in order to allow the government to do whatever it needed to get prepared but beyond that  fear wasn't any real claim by the government that they were prejudiced by the late disclosure so i think the problem is with the female that she and her brother lived in mexico yes actually the problem the real main issue is with the female one of the witness through one of the witnesses with withdrawn by defense counsel he decided not to call that person and the other witnesses although the government complained about the late disclosure was a witness the government knew about from the inception but your honor also the court let her testify as a rebuttal witness for the defense the only thing they precluded in terms of her testimony was the one limited area of the limited alibi and letters has to testify about a number of other important issues and the record indicates that the government was quite well prepared to do a cross examination on her the district court had mentioned something about that the prosecutor wouldn't have had time to interview her i don't know that he made any efforts to interview her there's nothing in the record that says he did or that a brief continuance wouldn't have given him that opportunity but it seems that in terms of investigation of the case things about her were investigated the government knew everything about her addresses and that sort of thing her brother was the owner of the cell phones they knew that they had all the phone records they could have been well prepared and any case the continuance would have put the mr gonzales was not happy with his counsel and he asked counsel to file a motion to withdraw mr gonzales one of newly appointed counsel their motion was file a very timely manner it was over thirty days prior to trial most of the cases that were cited in the briefs were cases where somebody wanted new counsel either the day of trial or even during trial and courts of course of found that to be untimely but i believe it was the smith case that was cited by the government actually helps that if a motion is filed at least thirty days prior to travel that it does favor the defendant compelling is where the subsequent continuances and that's the one i mentioned earlier a sixty day continuance so that the prosecutor could go on vacation and then there was even another continuance after that so it's very hard to s defendant and one of the cases that was i did by the government and in their twenty eight day letter hudson versus russian talks of the loss of confidence in other words lost confidence counsel outweighs in the defendant's favor and what the court is supposed to do is balance the idea of appointing new counsel against societ interests in prompt and efficient administration of justice competent and that he didn't want to waste the money of the taxpayers and then any case somebody might need more time to get ready and then after that he asked the defendant what the issues were i think the judge  the inquiry by starting out that way and he did not really focus on the lack of communication or the issues between counsel and the defendant the defendant did bring up that that his phone calls weren't being returned that a motion to continue was filed without it being discussed with him that he couldn't get in to have an appointment he didn't know what was going on with his case and the defense attorney defended himself and said he wasn't aware of those kinds of things but i think that that's that's always a problem in these kinds of cases that is that there is somewhat of a conflict of interest between what the attorney is going to say about his  and his contact with his client and what the client's going to say and also there was no inquiry in private everything was done in open court and while the government did cite a case that says that the court allowed to ask the government's attorney what they think about it i really think it's none of the government's counsel's business what the relationship is between a defendant and his attorney look i don't think the court made adequate inquiry into the lack of communication and how it was affecting the defense and i think that's for now later where even after the trial mr gonzales still requesting new counsel and finally the district court judge granted t trial strategy or some type of tactical decision but i don't think there's any evidence of that in the record and counsel was asked why he didn't file the notice on time he said that it was because he didn't know if the witnesses would be available for trial but that's really not the inquiry and all he had to do was do a partial disclosure of whatever information he had to show good faith and to put the government on notice and i think that it would have been protected and that witness probably would not have been precluded you know you've got a lot of time emphasized it's a partial preclusion well no because in fact she was allowed as a rebuttal witness to come in and testify to some degree about where she had lived which was to some degree an issue because of where and in this case they were no compulsory process claim as such was ever raised and so at most we're talking about review for plain error and plain error there wasn't my account posing council referred the court to disclosure agreement in this case was that junk sack material which did not technically have to be revealed to the defense until right before trial or even after the event and if you mean after the witnesses that testified that the government said we will give th you well in advance of trial so that you can develop your defense and do whatever you want as long as in return you will tell us when you have tensional witnesses and i would refer the court to the the language of the agreement which is your twenty potential witnesses and we know from the record that the defense counsel actually was aware of that and told the government without specifying who's going to do it that he had in mind to present the so called partial alibi defense as early as august agreement i couldn't quite tell when with the government going to disclose the jencks material it was disclosed immediately upon the signing of that agreement it's not part of it the disclosure you know the whole stack which is obviously not and understands it so that he recognises personally his obligation to make this kind of disclosure so whatever we may think about the defense counsel and how he handled it this is not something where we can avoid the fact that  disclosure wallace jencks material that you would otherwise would not be and title have in return for you in good faith telling us when you have potential you have the right to get it it just wouldn't be at you called your witnesses and then they'd say we want to continue as we continue  an alibi or whatever of the kind of the fans so we have i would suggest a real timing problem here in the fact that rosa was in mexico should not have been a bar this was the self proclaimed girlfriend of the defendant who posted his bond and it's important to know this the dating that she in fact was infused with defendant with defense counsel on february the fifth posting his second bond which would allow him to travel around which is after he had moved to mexico so they're obviously rimini by which she could be gotten into contact with and yet even after they have and after saying then in august we're going to have this partial defense no disclosure of her or what she was going to be saying was made until december on the eve of trial as far as the related in fact assistance of counsel claim obviously that is not something which is typically handled on a direct appeal i would suggest that it is particularly inappropriate to do it here when there is some question about who made the decision this is very like i think the acrid vs tansey case in a brief where there is some suggestion that in fact it was defendant's own hook or his reasoning why  real prejudice here basically what it was going to be called to say was that five o'clock in the morning some of the thirteenth the day after the marijuana had been found the defendant was not making cell phone calls really really a totality of the circumstances analysis of what really happened the most important is whether there was in fact a total breakdown in the communication process i think that arguably again i believe that what he was trying to do was show that there are a lot of things that might be suggested that they really didn't go into because they weren't legal realms but then he did and i think you ask the questions first  he may have believed in his discretion that this was the most efficient way of dealing with the bottom line is not even just to be a problem for me it's time for the a big problem for you  now it's a big problem for the government that this was an offense why it may not have been the best way but i don't think it's failed to the inquiry a bad way the defendant the only time that he complained about him not me touch with him was during the first eight days and in fact the lawyer explained not in opposition or not saying go you know agree to the motion he said i'm willing to step aside that's appropriate simply explaining  something else but i can remember what it was this did not appear to be a serious paragon of communication when the defense counsel said he's not being obstreperous he's not being a problem you can't communicate the defendant didn't suggest as in for example daniels oh i've got all kinds of big problems with his counsel and i need to talk to you privately or anything else so the real issue is was the could it have been a better inquiry certainly but was it adequate given the basis that was presented  magistrate believe that there's any kind of serious problem and i think if we're going to talk about subsequent events it's very significant that there were no subsequent complaints until after the conviction obviously defense is not going to be happy at that point two it's hardly surprising that one other change of counsel but at no point even in subsequent hearings when the defense counsel saying we're talking about this or selecting the witnesses and so forth was there any suggestion defend the  at that point unhappy with his counsel so yes there was some communication problems but that's hardly unusual in a criminal case and i'm sure you hear experiences you've seen many many of these system will be three factor analysis has been used both for this kind of case where it was really talking in terms of change of counsel it's also been effectively transferred to a conflict of interest so that i mean this is an appointed lawyer i actually and i guess the question is whether there's a suspicion breakdown in communication are some reason why this appointed lawyer should be removed and either appointed lawyer put in place and that's why the third prong of the analysis is total breakdown of communication so that in effect he's not allowed to present a defense but we do know that he expressed serious concern with his lawyer he says i really feel alone my freedom and my future depend on this in this case is about something that i'm not guilty for and i need to prove that i'm innocent in order to do that i need someone to help me who is interested in the case and there is no real follow up by the district court judge about let's talk about the problems what is there are you why can't you convert your client with you with your counsel and nothing hear before that statement that they don't want to waste taxpayers money and what i'm concerned about is making sure you get competent counsel and mr jacobs is a competent lawyer none of which apparently had any significant bas with the young mr kamar go trying to find his brother and repairers truck and so i really had no connection at all with that marijuana that was out there and so obviously when you put in the context of all the connections that were shown to cell phones and so forth there's a question of well what is his connection to this obviously prove conspiracy was a uniter not and so by showing that in fact he had a prior conviction for a very similar offens before you probably going to do it again and that's for a fort he said you're not supposed to use it for that purpose and there were both curative curative limiting instructions given immediately after the evidence was admitted and finally type situation or is there reason to believe that you were involved in this conspiracy that all of the circumstantial evidence indicates that you were and so like other circumstantial evidence it indicates that yes he knew exactly what was going on and intended to be part of  compulsory process claim was waived or worse that it was never even raised the words weren't used and the government's counsel several times and it's brief talked about the failure to use magic words and i don't think we need to do that but the issue was raised and very vigorously argued and the prosecutors give me the defense counsel brought up the fact that the prosecutor did nothing to try to minimize whatever surprise or prejudice they supposedly had by not having that witness disclosed i think under homeland standard of review is to know at worst it would be for an abus zero four the information goes i think your honor hit the nail on the head with that it's really hard to understand why that evidence comes in and in this case the government never filed its notice of intent to use for zero four b so the defense did not have any notice of what purpose the government intended to use it for i believe the government names  couple reasons just right out of the rule and the judge went on to name every single one of the listed reasons and said that that's why the evidence was going to come in but the truth is that the prior was not a conspiracy the prior conviction so it couldn't have been used for any probative value regarding association or plan and it would be a very limited value for knowledge and inten because in fact the charge and the facts of that case were very different i think that in this particular issue government's tyranny really highlighted the problem with using th evidence when he started we characterize in the prior as a marijuana smuggling conviction went on and on about that until finally there was a side bar and the judge told him to stop saying that because there was no evidence that the prior had anything to do with smuggling prior was for possession of ninety four pounds of marijuana and was actually somewhat just similar except for the fact that involved marijuana and the government's attorney also tried to go into the dismissed charges and the plea agreement and all sorts of other irrelevant issues the defense objections were sustained regarding i think it made it pretty obvious that the government was using the for a fee for a for the evidence precisely for what it is not allowed to be used for and that's propensity this was a very weak circumstantial case and the government needed that evidence about the prior conviction basically just saying he did it before so he did it again and just spite a limiting instruction i really question the effectiveness of those limiting instructions i know that the jury is presumed to follow instructions and they probably try as hard as they can but it's just human nature that the minute they hear somebody did it before they're going to be more inclined to find their guilty and that they