one thing i do want to clear up i did drop in a footnote that the case was somewhat related to a case that is being considered by another panel of this court that's the twenty three twenty three c issue and that's  united states versus pepe that case has been pending for about nine months but it does address the same issue as a mystery brought up in his brief which is whether or not twenty four twenty three c encompasses the conduct for a foreign resident so if the court would like me to address that issue i just wanted you to know that it probably is a related case that i was probably in error to only drop it in a footnote to make the court of aware of it known that way rather than make identified as related case so with the court like to discuss that issue as well considering that it's pending well i would just ask this question what we were aware of that case ok just to understand the nature of the statute in this is going to also for account for the government of the government's reading am i correct that if i were to travel to ireland now in twenty eighteen and then twenty years from now i stay in ireland the whole time i maybe i'd pop back occasionally for my residence requires have no idea what the requirements are but let's say somehow i stay in ireland and i'm a law professor like that just once or was once upon a time and twenty years from now i engage in activity that is for hit by the statue i say no that's absurd that's an absurd result in that the panel in pepe struggled with the same temporal requirement that united states or die states citizen or you're born in a foreign country to united states citizen c or citizen you've traveled to a country let's just pick germany as a baby and then fifty years later you commit a sexual assault is that something that's supposed to be regulated by the commerce clause no that's an absurd result it's extraterritorial that's a you know less dick crime that occurs in the foreign country that should be addressed by the foreign country but that's not those aren't the facts here those are not the facts here that's correct but the temp oral issue is something that isn't is the you are injured temporal issue only in the sense that you are saying he was a resident of russia and therefore doesn't come within the statu that that let me just put that aside for one moment is aren't those are the facts we have in this case we have a district court made a factual finding that this person was a traveler who for example whose conduct was supposed to be embraced by the statute he made a finding as to the twenty four the be killed that mr abrams off was a resident of russian at the time that he was going to go to moscow he was traveling home and so when he got there if you look at to thailand intends to stay in thailand never comes back to the united states and the traveling he did was before the statute was passed then this is such a different case i got the dates of his travel to and from russia i mean he's traveling multiple times a year to and from russia he's not gone over to russia and stayed there  number one the district court did not make a finding that he had a dual residency he made a finding that moscow was his home and that was the only residency there was no other finding by the district court and in this case if their finding was clear by judge wright agree with your honor however and the reason that i brought up jackson was not to talk about some of those other issues because i realized the crux of of jackson was that all of these events happened before the nachman of the statute or before the effective date of the statu but the reason i brought bring up jackson is because of its discussion of when travel ends and that brings back judge owens of observation that essentially is getting to the point of when does your travel end it has to temporal thing is relevant so i think you walked away from that argument you know what i i understand what i said in my reply brief is that because he's a citizen and resident of russia and the district court found that whether or not he was a temporary traveller or a long term traveller that temporal issue is irrelevant so because he's there and if you look at jackson it says we could find travel to end when he reaches home and off reached his home in russia he was a traveller to three weeks trying to be a sex tourist or something like that which is exactly what the all the legislative history of this particular act tries to prohibit people traveling from one to another country substitution of counsel and his denial of a continuance i believe that the court in this instance abused its discretion to deny both of these things for very clear reasons the government brought up the fact that the yes p's opinion was amended and i acknowledge that but it actually strengthened my argument in this regard because in the appease the court said well he didn't bring up any problems with his counsel so why should why should the court have tried to switch his counsel here abraham had a long list of problems that he had with his counsel that the court resist completely glosses over and then when when they're in court and he starts cataloguing them the court says well you two have been get along for just a year now it's been so long and that just does denied all of the facts in both the hearing the letters and every opportunity that mr abrams off sought to bring to the attention of the court that his relationship with his attorney had broken down in addition his attorney was essentially proved mr case going to the court lying about whether all he had done all this investigation all these witnesses he told the court that he had video depositions and even the court called him out on that said that was absolute lie and that kind of exposed all of the things that mr abr to the attention of the court as to the problems that he had with his counsel and why he should have actually entertained the change of counsel in a reasonable continuance and finally  good morning may please the court b j shanker for the united states your honor is the issue in this neck in this case is not when the travel committed by mr abrams and it and that is because as this court made clear in both clark and illicit sexual conduct need not occur during the travel it can occur there after and so here mr able mobs argument is solely that the statute does not apply to him because he resided in russia so we can assume for purposes of this case that his travel ended when he touched down in russia and we can even assume for purposes of this case that his primary residence was in russia it still follows under clark and jackson that he traveled from the united states to russia and thereafter committed illicit sexual conduct and that falls squarely within the scope of the statute now to address judgment only i would you argue that i'm going to take  before that are not the facts of this case he travels to russia twenty years later he commits a sexual crime in russia that would be a sexual crime here there's no statute cover that your honor it would be a more difficult case  the fact of united states citizenship alleviates due process concerns in that situation and so we once you have a united states citizen this court found that that is sufficient to alleviate due process concerns the question then is whether is the still a commerce now that means that anyone who is a united states citizen who commits a sexual crime abroad no matter when he left the country even if he took citizenship of another country and is now a dual citizen and commits crime thirty years after leaving the united states your view is that that's a crime under the statute your honor again i think it's a more difficult question i don't think it's presented here and to the extent the court is asking for an answer my position the government's position would be that that would be a crime now again it's not presented here as your honor noted yourself the travel here was in very close proximity to illicit sexual conduct and so i would hesitate to address that point when it's unnecessary in this case and i would urge the court to follow the pattern of clarke and jackson and not reach that question in this case i fully admit it's a more difficult question but i don't think it's necessary to reach here now of course that congress addressed that situation somewhat when it added the residency element of the statute in two thousand and thirteen so you could have someone who lives in another country doesn't travel and is liable under the statute  but certainly here as the way the statute stood in two thousand and nine mr aber mob traveled extensively back and forth between the united states and russia in close proximity to illicit sexual conduct and i think this is an easy case under the statute this is not quite apparent from the record you may or may not feel free to answer the question and i'm not sure it's relevant legal but nonetheless it strikes me and we i don't usually see prosecutions for crimes committed broad i've seen a few that are sex tourism cases but this does not appear to be a sex tourism case it is it being prosecuted why is this not being prosecuted in russia you know it could be prosecuted in russia and it could the right answers i my question is why and you may not have an answer i mean this is not essential to your case that you tell me to answer this question right here i don't have an honor if the court has no further questions on either that issue or the substitution issue i would like to ask you about this abuse certainly it's pretty clear that the lawyer is not doing a very good job and the judge right was put on notice that the judge was not really a very good job judge wright himself said well you know that's not true so why why was he not entitled to change counsel when this becomes apparent your honor i'm not sure it's exactly right that the counsel wasn't doing a good job at least under the rubric of the sixth amendment right to competent counsel and i would respectfully disagree that the district court made clear that it thought that counsel wasn't doing a good job counsel here moved to dismiss the counts of the indictment with fairly strong  arguments the district court at the hearing praised council for making strong arguments and said that it was a close issue it then denied the motion to dismiss it specifically said at the hearing to mr abrams of your counsel is doing a very good job at the hearing on the motion to substitute certainly it was a tense hearing we were now less than a month before trial and counsel was suddenly raising the fact that he hadn't interviewed certain witnesses and brought certain witnesses to the united states whether mr aber mav has a twenty out on the witness li defense counsel might not have thought those witnesses to be the most appropriate folks to have before the jury and so those may well have been strategic decisions made by counsel the point here is that mr abrams that the eleventh hour was raising  challenges to strategic decisions made by counsel and that as this court has said in both areas boskone mendez sanchez and other cases mentioned in our briefs is simply not enough to substitute counsel at that late point when as the district court explicitly found it would effectively derail this prosecution thank you right out of the gate why can't this be evaluated in twenty to fifty five the two shooters it can be but it's all it's before you get to twenty to fifty five which with all kinds of things that are outside the record we have to deal with the record we have which is one of not just incompetence but lying to the court a fraud upon the court telling the court early in the case and you continuance their witnesses we need you for depositions then did weeks before trial saying these witnesses  critical i need for depositions i mean the motion was granted the day before trial started and after the government concluded its case counsel for the defendant is still telling the court i have that witness that's coming by video deposition and the court says we know that's a lie it's just something that they can two days ago and you would have to go to russia to do that right what we don't know is we don't have the lawyer side of the story as to why he was saying nice things i mean for all we know it was because this client was telling him these things well to represent to the court that i have a witness that's coming by video deposition when you know that that's not true that's a lie that the fraud on that i guess i'm saying is i think we have to go about well we don't have the full we've never had an opportunity our no course far as i know it had the opportunity to get defense counsel's explanation what happened you know you might be right may not be a very good one but i don't know if we have an it is i think the record where he's had his opportunity to explain his interactions with this client no but i would submit that there's no opportunity that defense counsel should have that you make an affirmative misrepresentation to the court that you have witnesses that are coming that were coming by deposition or by either rule fifteen subpoena or by judicial assistance when that order was done two days ago it's effectively a lie and a  a good thing but i will tell you having been a prosecutor for many years and i had many times where defense counsel told the court about witnesses come in and they never showed up so this is not the first time this happens the difference between witness is saying you intend to bring certain witnesses or call certain this is and then change your mind but in order to have called any of these witnesses the process of bringing them to court the process of obtaining their deposition would have at least have to have started had to have started this process started with letters raga torrie being issued the day before trial and they would have had to travel to russia and this is something that that mr gourevitch was telling the court and his client that they were important percipient they were critical and they were coming even after the government's case closed and what i'm saying is this is part and parcel of why mr abrams was reaching out by letter by retaining other counsel saying that all of this stuff is not being done i need help and what does the court do he rejects the letter finds every reason to say no no this train is moving forward this communication has broken down yet i'm going to return that letter back to the council has been completely unresponsive to you so it is essentially stranding this person leaving him almost no way to communicate to the court that my  communication my relationship with this person is completely completely broken down and then when we get to the hearing on october fifth to request change of counsel and continuance of the trial any continuance even a reasonable one the government comes with i would submit speculation about how difficult it would be and if you look at the government's representations they say subpoenas have been sent and are still being sent arrangements are being made and are still being made there wasn't any challenge to that by the court to say look the defendant has an important constitutional right which is fundamental i need to know whether or not any accommodation could be made to move these because you're saying the stuff is in flux they're not in all the other cases that this issue comes up the witnesses are in the hallway the it's the eve of trial in the appease it was in the middle of trial i mean i understand those things are unreasonable at the earliest it's five weeks before when we're sitting in court it's three weeks before and the government concedes in its representations to the court not all the arrangements have been made the witnesses are still in russia yes any sex crime is going to have difficult difficulty bringing witnesses in they don't want to relive it that's it that's in every single case they never said anything about any of the other two continuances of the trial but now when this when they will i don't want to overstate it but when they see there's now a technique tactical advantage they're saying oh it's just the train is too far and then you have the court almost doesn't give any attention to the concerns that are clearly raised by the defendant which are all very substantive and so i think that it is it is use of discretion to remain so unclear eous about the nature and extent of the breakdown of the communications and so uncurious about how this defendant's constitutional rights can be preserved in the face of bald representations by the government that things are just so difficult there's no declarations there's no evidence it's there's nothing it's just mere representations that this is tough relations with russia may change a