counsel up we will hear from his west over a criminal investigation being conducted by the united states attorney's office the facts are pretty straightforward so unless there are any additional questions about that i'd like to address what appears to be a fairly significant disagreement between the defense and the government does to what you could look at it as a potential conflict in the event he that he believes that i'm serving the government instead of him and it's not worthy but it does seem to identify the big risk of  her position as of that point so so he's so he's standing there he hears it whatever it been said before we all know that he knows that that's the risk you respect but i don't i actually don't read it as  suggest i don't know first of all the district court informs him before that she says that there's an investigation to one of her clients and that she's become the subject i don't think that we can assume that most people know i mean unless you practice in federal court i don't think you know what the subject of an investigation is in a technical sense and if you don't have that information i think it's very difficult what you have there is a pretty big statement  and then when she goes on to say i could be serving the government and not him i don't think anyone does anything for mr back to connect the line between a lie an investigation into someone's client that person to feel like they need to curry favor with the government in your case i actually think it's a little bit more of a as the government's investigating another one of my clients has told me that i'm a subject of that investigation so the judge explorers you know i know that you don't think that his exploration is adequate that's your point but i was probably reluctant to get too much into understand that i think that what the court needed to do well however it obviously has a list of what this court recommends the district courts do and i understand that district courts don't need to check every one of those boxes in order to establish the validity of a waiver or conflict through counsel but this court in coverage did say that at the minimum the district court must inform each defendant of the nature and importance of the right to conflict free counsel and ensure that the defendant understand something of the consequences of the conflict so let's assume and so so the judge says in your where you have a right to what's called conflict free representation do you understand that beck says yes and so you think more was needed there too i think more was needed there i think that he needed to explain what conflict free counsel meant even though he asked beck whether he understood that beck says yes well beck says that he understood that he has a right to it and i don't mean to be overly pursing but it's not that's not the of this type exists you have the right to either hire have an attorney appointed who doesn't suffer from this type of person about what would happen down that road the first thing that would be mentioned is that there's mr ciralsky without the conflict so we sort of already have solved the problem haven't we i don't think so because we don't know that mr soros ski we don't know that it's rusty said anything to mr back in the aged we don't know don't it was you know he was at the meeting he was at the meeting yeah we know that but we don't know what was said at that meeting or keyes made any comments at that meeting we don't know even how much he knew about the condo what we do know is what she said that gambino who was herself under federal invest criminal investigation at that time yes so i mean obviously he knew the facts that were stated in open court i mean clearly he was there and i can see that point i think that what the district court needed to do in this case was explain why it's someone under investigation to do more to explain why that might impact  dis an attorney's decision making at trial kind of the real practical meaning of it yes like you are well then you have to assume you know what the government's going to do well or what this court has done and hubbard or what other court district courts have done under similar circumstances to explain here's what the government might do right for example someone being the subject of an investigation i think it very least you should explain that means at some point in the future they could be indicted right and if they're indicted they suffer actual criminal potential criminal consequences there's nothing in here that even says in the face of it that assumes that to your client has no i of anything about the criminal person criminal process i don't think it is something you have to have no idea i think knowing what the subject of an investigation is i mean the u s attorney's office investigates things that are criminal right knowing that the subject of an investigation specifically refers to a individual whose actions have come up in a criminal matter i know i don't think most people know that maybe given the recent news more people are under criminal she she said she was under criminal that she was under primal federal criminal investigation federal criminal investigation and what do you have to say beyond that i mean she says she has been investigating that want to do the government is investigating another one of my clients and told me that i'm subject to that investigation so she doesn't use the word criminal herself not that are not not part of not in that part of the transcript and as i said to be honest with you even if she had i would still say it's insufficient and less the district court explains to him what why it is th subject to a criminal investigation might lead someone to want to curry favor with the government in a separate case at that pace or alternatively why it might make them inclined to be more aggressive or objective in their presentation of evidence or it's the government  of criminal record mr beck i do not remember mr black's criminal history of the time i can find to have one i do believe he did i'm sure that he understood the concept of a criminal investigation what i'm saying is that it is not intuitive to me i don't think it's as intuitive as perhaps this court seems to want to set it is significantly problematic depending upon the attorney for you get some you get a defendant in who's never been in the criminal probe criminal process i agree that they may need a little bit more educated but if you get somebody who's drawn through at least even once they get an idea what how it works i mean i of the right to counsel or the right to a conflict free counsel we do you usually demand more that and other sorts of waivers so there are certainly cases where for example i'm into my rebuttal you have a minute left of your rebuttal  and that is the nature of the potential conflict specifically that counsel was the subject of an investigation into one of her other clients some risk of the potential conflict and that counsel could be serving the government instead of mr ba met was two months before he was indicted here and at that sentencing it said certain things the way the district court here in sentencing so does it make any difference where this information come from because you've gone through this it's miss the and the judge doesn't really spell out what that means and then see i don't know if it was you or whoever the a u s a was in your says mr ciralsky has no potential conflict the judge there says right so you have some confirmation on that third point from the judge but not the first and the second the information does not have to come from the judge manner as long as the defendant has the information in making the waiver in effect in the lowery case this court noted in that case that with the district court it ensured that counsel had explained the conflict to the defendant there was no reason to believe that experience to the end of the spirits defense attorney would be less than forthright with his client and i cite that and quoted on page seventeen of the government's power now are there any constraints on the judge in a colloquy like this and probing into the conversations the person has with the lawyers of course or in that is the privilege and also i point out a case in the government's brief this is a little bit of a minefield for district court because not only do you have the privilege but you don't a district court doesn't want to not affected your honor so the potential conflict does not automatically result in effective assistance of counsel in connection with the believer you've been very careful to call it a potential conflict and hechsher yet why because  defendant has to understand some consequence of this conflict and that's that she was describing that that would be some consequence not a record not anything related to that or his case as a participant in that identify x or omissions of counsel that are not the result of reasonable professional judgment and second the defendant must show some prejudice the defendant does not even address their problem the record does not reveal any ineffect sense blow the guideline range that's true that's accepted right the record reveals that he was able to enter a plea that was very favorable to him compared to the indictment and the charges and that he received a course affirmed the conviction and sentence below thank you all right thank you very much i'll give you a minute player his voice over briefly your honour's just on the question of prejudice we believe that under holloway does apply to potential conflicts of interest and indeed only x like for the purpose of being potential potential conflicts of interest where the ineffective assistance is based on an allegation that choice that the council  conflicted how the way applies directly to potential conflicts in fact that's the whole point is that we don't know prejudices presume because we don't know what effect it would have now if it's not brought to the district court's attention and a potential conflict becomes