[00:00:00] Speaker 03:
Please be seated.

[00:00:05] Speaker 00:
Good morning everyone to the Ninth Circuit Court of Appeals and today's oral arguments.

[00:00:10] Speaker 00:
I am Judge Sanchez and with me is Judge Thomas and we wanted to thank Judge Donato who is visiting us from the Northern District of California and has agreed to come and share in our load and take time out of his busy schedule so we want to thank him for joining us for these arguments.

[00:00:29] Speaker 00:
We have a few cases that have been submitted today, which I will attend to briefly.

[00:00:37] Speaker 00:
The first one is United States versus Du Truong Nguyen, case number 23-2207.

[00:00:48] Speaker 00:
In Ray Vincent Dwayne Howard case numbers 24-2292 and 24-3833 and finally John L. Withers versus Christine Cousins and Christine Cousins versus

[00:01:04] Speaker 00:
Transamerica Life Insurance Company case number 24-889 and so the first case that we have for argument is United States versus Feliciano Felipe Zavala case number 23-2840 and counsel may approach

[00:01:23] Speaker 04:
Good morning, Your Honor.

[00:01:25] Speaker 04:
Norris Stevens, Federal Defenders, on behalf of Mr. Felipe Zavala.

[00:01:28] Speaker 04:
I'll reserve two minutes for rebuttal and keep track of my time here.

[00:01:32] Speaker 04:
Thank you.

[00:01:32] Speaker 04:
United States martial policy precluded Mr. Felipe from ever having a privileged or confidential meeting with his counsel during the entirety of his federal criminal case.

[00:01:43] Speaker 04:
And this complete deprivation of his Sixth Amendment right to confidential communication with his attorney

[00:01:49] Speaker 04:
constituted structural error and should be reversed.

[00:01:53] Speaker 03:
The biggest question in my mind is just why there wasn't just a request for a private area.

[00:01:59] Speaker 03:
It seems like there was an assumption that no accommodation could be made, but was there ever any attempt to ascertain that that really couldn't happen?

[00:02:08] Speaker 04:
Yes, Your Honor.

[00:02:08] Speaker 04:
There were five different steps that defense counsel took to attempt to have a confidential meeting with her client.

[00:02:15] Speaker 04:
First, she reached out to the native interpreter that was used at the original hearing and was told that that person resided in Mexico, could not come in and meet in person, so she tried to find an interpreter that could meet in person.

[00:02:30] Speaker 04:
Both of those attempts failed.

[00:02:32] Speaker 04:
Then she reached out to the US Marshals to attempt to have a cell phone taken into the tank, because again, the reason for this problem is that United States Marshals

[00:02:43] Speaker 04:
policy did not allow for cell phones into the jail or into the tank and also their policy was to allow, was not to allow defense counsel to meet privately in the courtroom.

[00:02:53] Speaker 04:
So she also reached out to me.

[00:02:58] Speaker 00:
At the time when this came up in the hearing, I think there had already been a meeting with the client and the relay translation for about an hour.

[00:03:09] Speaker 00:
And that's where I think the marshals were in attendance and board of security officials.

[00:03:14] Speaker 00:
When I read the transcript of the bond hearing I read the court saying if you need a continuance and some sort of an arrangement in order to make communications with the client more confidential just ask let us know and Council didn't make that request at that time So I'm having trouble seeing what the deprivation was if that opportunity was extended and council didn't do anything with it

[00:03:43] Speaker 04:
I understand very much the court's reading.

[00:03:46] Speaker 04:
The issue for defense counsel was that the proposed solutions that the magistrate judge offered did not allow for any privileged meetings.

[00:03:54] Speaker 04:
So the magistrate judge, first of all, ruled it was not a Sixth Amendment violation.

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He ruled that even though the marshals were present and defense counsel stated six times on the record that she did not have confidential communications, did not have privileged communications, nobody disputed that.

[00:04:09] Speaker 04:
Yet he still found that it was not a Sixth Amendment violation.

[00:04:12] Speaker 04:
which is an error per Nordstrom.

[00:04:16] Speaker 00:
But get to my question.

[00:04:19] Speaker 00:
The magistrate did also say, but if you want a continuance in an arrangement for under different circumstances to have more confidential communications with your client,

[00:04:29] Speaker 00:
And counsel instead asked for the client to be released on bond and then moved to plead guilty.

[00:04:37] Speaker 00:
So I didn't see any specific request made of the court at that moment to obviate whatever may have been a problem beforehand.

[00:04:45] Speaker 04:
Defense counsel repeatedly was telling the court what her problem was.

[00:04:49] Speaker 04:
She needed United States martial policy to be overridden.

[00:04:52] Speaker 04:
She needed privacy, and she needed the ability.

[00:04:54] Speaker 00:
Well, can I ask, you keep referencing the martial state's policy.

[00:04:58] Speaker 00:
Where is that policy in the record?

[00:05:00] Speaker 04:
That policy is in the record at ER 20 that she asked to go to the table.

[00:05:07] Speaker 00:
No, that's the transcript.

[00:05:08] Speaker 00:
Where is the actual US martial policy that you say precludes someone from being able to communicate confidentially with their attorney?

[00:05:16] Speaker 04:
The policy was understood by defense counsel at the time and is in the transcript as to her understanding of what it was that she could not do.

[00:05:23] Speaker 00:
See, but I think that's part of the problem with this case is there hasn't really been something developed as to a request made by counsel to the court or whatever this policy purportedly is because there's no documents that indicate what the policy is.

[00:05:38] Speaker 00:
There's no affidavit.

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There's nothing to indicate that this is actually U.S.

[00:05:42] Speaker 00:
Marshall policy.

[00:05:43] Speaker 00:
And I think part of the problem is because

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Council didn't take the court up on an attempt to try to rectify this when the court extended that.

[00:05:55] Speaker 04:
I understand the court's concern, but I think for, and we'd be happy to file a 28-J related to the Marshal's policy at that time if that would be helpful.

[00:06:05] Speaker 04:
But for defense counsel, she did everything that she could to have confidential communications, and she did not believe that the... If I can just jump in.

[00:06:13] Speaker 02:
Of course you can.

[00:06:14] Speaker 02:
I wanted to get you back to the word structural, which I think is the right word.

[00:06:18] Speaker 02:
Sure.

[00:06:18] Speaker 02:
And I do think, I have some concerns that there was a...

[00:06:23] Speaker 02:
six amendment violation and access to count right to counsel in this case I you know you you you you said Nordstrom I don't a little puzzle about why you want to be

[00:06:34] Speaker 02:
in company of Nordstrom.

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That was a Section 1983 case.

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It was a civil case.

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It was addressing factors that are not required for a structural violation of the Sixth Amendment, like prejudice and deliberate interference.

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You don't need any of that.

[00:06:52] Speaker 02:
The Supreme Court was crystal clear in a case called United States v. Gonzalez-Lopez that

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If there's a Sixth Amendment violation of the right to counsel, you're done.

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You do not have to show prejudice.

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You do not have to show anything else.

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So when you think of it from a structural perspective, this is what I want to get your view on.

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To me, the duty is on the judge.

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This right is here.

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You don't have to ask for it.

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You don't have to take it down from a shelf.

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It's here unless you waive it.

[00:07:23] Speaker 02:
I didn't see anything in the record where the judge did anything to establish that the defendant had knowingly, voluntarily, and intelligently waived, which are the requirements, his access to counsel.

[00:07:35] Speaker 02:
I know he wanted to go home.

[00:07:36] Speaker 02:
I get that.

[00:07:37] Speaker 02:
But what's your view on whether there was a waiver and whether there was any evidence that he did waive it?

[00:07:44] Speaker 04:
Because he experienced a complete deprivation of his right to confidential communications, that meant that his plea could not have been knowing and intelligent.

[00:07:54] Speaker 04:
And because of defense counsel's repeated statements that she did not have privilege communications, did not have a safe space to speak with her client, is exactly why, yes, he agreed to plead guilty.

[00:08:07] Speaker 04:
But there are so many conversations that might have happened had he been in privacy with Justice Counsel, and that right is sacrosanct per Nordstrom.

[00:08:16] Speaker 04:
And I'd like to also answer Your Honor's point about why it is that Nordstrom is relevant here.

[00:08:22] Speaker 04:
Now, Nordstrom is a different case in that there it was a partial deprivation, and so prejudice was required.

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But the facts of Nordstrom are similar in terms of why a Sixth Amendment violation was made.

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There it was jail guards reading inmates' mail, even for 15 seconds was deemed to be a Sixth Amendment violation.

[00:08:43] Speaker 04:
And that is akin to hear just the marshals being present and defense counsel repeatedly stated six times, I don't have confidential communications.

[00:08:51] Speaker 04:
She could not have said that if she thought the marshals could not hear.

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And nobody disputed her.

[00:08:56] Speaker 04:
The magistrate judge, the government, they did not dispute her assertions.

[00:08:59] Speaker 04:
that she did not have an opportunity to speak privately to speak confidentially with her counsel.

[00:09:04] Speaker 02:
So in that way, it's just, I'm really puzzled about why you're embracing Nordstrom because it's making you do things that I don't think you have to do, like show prejudice.

[00:09:14] Speaker 02:
You, I, it's a 1983 case.

[00:09:18] Speaker 02:
Okay.

[00:09:18] Speaker 02:
It's, it's already a couple of jumps away from where you are.

[00:09:22] Speaker 02:
And it's, it's inviting the government to say things like, well, he, you didn't show prejudice.

[00:09:28] Speaker 02:
You didn't show things that I don't think you're required to do.

[00:09:31] Speaker 02:
So.

[00:09:32] Speaker 02:
Can you help me understand why you're so fond of Nordstrom?

[00:09:35] Speaker 02:
Certainly are.

[00:09:36] Speaker 04:
And I recognize I'm at two minutes, so maybe I'll answer this and then say the rest for a bottle, please.

[00:09:42] Speaker 04:
We are only, because this specific question is an open question for this court.

[00:09:48] Speaker 04:
So we consider Nordstrom in terms of just what it means to reach a Sixth Amendment violation.

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And that happened here in similar circumstances to Nordstrom, where it was deliberate interference by a government agency.

[00:10:02] Speaker 04:
And there's nothing about to meet that first prong, there's nothing about that in terms of, it's the first prong, but not the second prong.

[00:10:12] Speaker 04:
So because it's a partial deprivation, that is how it's different.

[00:10:18] Speaker 04:
But we do look to the structural errors for why it's a complete deprivation.

[00:10:22] Speaker 04:
Gonzalez-Lopez, Getters, and those cases for why it is that this is structural error here.

[00:10:28] Speaker 00:
Can I ask, so on the structural error point, is there a case that has found structural error with law enforcement being present in the presence of an attorney trying to speak with their client?

[00:10:42] Speaker 00:
So, as opposed to cases where a client is not able to access an attorney at all.

[00:10:50] Speaker 00:
So I'm trying to understand, you know, is there a case that says it's structural error under factual circumstances similar to the ones presented here?

[00:10:58] Speaker 04:
No, because all of the cases where it's government interference are partial deprivation cases.

[00:11:06] Speaker 04:
So for example, the confidential informant cases

[00:11:10] Speaker 04:
Those are different because they're partial deprivation, and also there's no chilling effect because the nature of confidential informants, the people in the room are not aware that that's law enforcement.

[00:11:20] Speaker 00:
And partial deprivation is not structural error because we have to look at prejudice as a problem.

[00:11:26] Speaker 00:
So then why is this total deprivation and not partial deprivation in your view?

[00:11:30] Speaker 04:
This is total deprivation because Mr. Felipe had absolutely no opportunity to meet privately with his defense attorney.

[00:11:40] Speaker 04:
which is very different from the Nordstrom cases, where those inmates could have chosen to just not send legal mail to their attorneys and just wait to meet them in the jail.

[00:11:49] Speaker 04:
But that's not what happened here.

[00:11:51] Speaker 04:
The only opportunity that he had to meet with his counsel was with United States Marshals present due to their policy being an intentional interference there.

[00:12:02] Speaker 04:
We'll give you a little time for rebuttal.

[00:12:03] Speaker 04:
Thank you very much.

[00:12:13] Speaker 01:
Morning, may it please the court, Zach Alfie, the United States.

[00:12:16] Speaker 01:
Judge Donato, let me start with your question directly.

[00:12:19] Speaker 01:
The difference between this case and Gonzales Lopez as well as companion cases like Getters and Powell versus Alabama and you Slayden versus Lamarck is Exactly what Judge Sanchez said those cases all deal with either a complete deprivation of counsel or in Gonzales Lopez a deprivation of the choice of counsel Here there is no dispute that Felipe had counsel of his choice in the room with him at the time the only claim is that there was government intrusion into that and

[00:12:47] Speaker 02:
Let me just push back on that just for a second.

[00:12:51] Speaker 02:
I find it really hard to say that he was given his choice of counsel when he had to communicate through two interpreters and a room full of law enforcement agents.

[00:13:02] Speaker 02:
If you can't talk freely to your lawyer, you don't have your choice of counsel.

[00:13:07] Speaker 02:
I mean, that just seems plain as day to me.

[00:13:08] Speaker 02:
So I don't think Gonzalez-Lopez is off point.

[00:13:12] Speaker 02:
I think it's actually quite on point.

[00:13:14] Speaker 01:
Your honor, I think if that were the case, then the Weatherford case from the Supreme Court, the Glover case from this court, the Irwin case from this court would all have come out the other way.

[00:13:23] Speaker 01:
Because in those cases, you had a complete overhearing of everything that defense counsel and their attorney was actually talking about.

[00:13:31] Speaker 01:
In some cases, it was an undercover agent.

[00:13:33] Speaker 01:
In some cases, it was a confidential informant.

[00:13:35] Speaker 01:
And in some cases, they actually transferred the defense strategy to the prosecution.

[00:13:41] Speaker 01:
And still in those cases, the court said that you don't even have a Sixth Amendment violation itself unless you show both deliberate interference and substantial prejudice.

[00:13:52] Speaker 01:
So this is a paradigmatic intrusion case.

[00:13:56] Speaker 01:
And in that case, you have to show both elements.

[00:13:59] Speaker 02:
That's the difference between... You know, Justice Scalia and Gonzalez Lopez says that it is the root guarantee of the Sixth Amendment.

[00:14:08] Speaker 02:
So you don't need to show prejudice.

[00:14:10] Speaker 02:
You don't need to show anything other than you were deprived of your right to counsel.

[00:14:14] Speaker 02:
You agree with that?

[00:14:16] Speaker 01:
I agree with that if you're talking about having counsel there and having that counsel be the counsel of your choice.

[00:14:21] Speaker 02:
But not... But that's an empty opportunity if you can't talk freely, openly, and without fear of having your communications monitored by the government.

[00:14:31] Speaker 01:
Again, I think if that were the case, then all of those cases I've just listed off from this court and the Supreme Court would have come out differently because every one of those cases deals with what you could easily categorize as a complete deprivation of a confidential communication, not the presence or the choice of counsel, but a confidential communication.

[00:14:48] Speaker 01:
And yet the court has still said that you have to show prejudice.

[00:14:51] Speaker 01:
I think the reason is because these derive from different sorts of Sixth Amendment guarantees.

[00:14:56] Speaker 01:
One is dealing just with the actual counsel itself.

[00:14:59] Speaker 01:
The other is dealing with a fair trial guarantee, much like an ineffective assistance inquiry, where the court again has said that

[00:15:05] Speaker 02:
But that's exactly what Gonzalez-Lopez warns against confusing.

[00:15:09] Speaker 02:
Justice Scalia takes great pains to ensure that we don't confuse the root right of counsel with ineffectiveness and fair trial and everything else.

[00:15:18] Speaker 02:
That's why it's structural in Gonzalez-Lopez.

[00:15:21] Speaker 02:
So we're not talking about ineffective assistance, we're talking about no access to assistance.

[00:15:27] Speaker 01:
I agree completely with that categorization.

[00:15:29] Speaker 01:
The only thing I disagree with is whether we're talking about no access.

[00:15:32] Speaker 01:
Here, when you have counsel, you have counsel of your choice and you're able to confer, but the only question is, did an agent intrude?

[00:15:38] Speaker 01:
And that is, again, a classic interference case, just like Weatherford, just like Irwin, just like Woodford, just like Donaldson, just like all of those cases from the Supreme Court and this court.

[00:15:48] Speaker 01:
saying you have to show prejudice.

[00:15:50] Speaker 01:
But maybe I could address the actual merits of the claim.

[00:15:54] Speaker 01:
You know, here I think the parties are now in agreement that it is the defendant's burden to show the constitutional violation.

[00:16:02] Speaker 01:
And when you have a record that is devoid of any allegation,

[00:16:05] Speaker 01:
that these officers in the courtroom or even within hearing distance in this large courtroom, let alone that they tried to overhear anything or did overhear anything or that Felipe even expressed concerns about being overheard, it can't be said that the defendant has met his burden to show the constitutional violation here.

[00:16:24] Speaker 01:
And I think that's before you even get to the question of the cell phone policy or the availability of continuances.

[00:16:30] Speaker 01:
I think those are additional independent reasons to find no deliberation.

[00:16:34] Speaker 02:
Why didn't the magistrate judge go to more effort to make sure that this client had an opportunity to speak freely and openly with his lawyer?

[00:16:43] Speaker 02:
The right thing to do in my view would have been to say, I'm going to put this over for two weeks.

[00:16:47] Speaker 02:
I'm going to make sure that you have a space where you can talk without any government agents present.

[00:16:52] Speaker 02:
and the translators are available and you can do whatever you need to do.

[00:16:56] Speaker 02:
He ran this thing like an express train.

[00:16:59] Speaker 02:
I mean, why does Barrow through this?

[00:17:01] Speaker 01:
Your honor, page 21 to 23 of the record, the magistrate judge says multiple times that I will offer you accommodations acceptable to you, referring to defense counsel, and also refers to special relief, and refers multiple time to the availability of continuances, which could have been for any amount of time, but the magistrate judge also suggests specifically, look, if you want to just put this over until this afternoon, we can do that.

[00:17:26] Speaker 01:
So you had multiple express offers of continuances to suit defense counsel's needs.

[00:17:33] Speaker 01:
This was not an express train.

[00:17:35] Speaker 01:
It's simply that defense counsel turned down all of those opportunities.

[00:17:40] Speaker 00:
So can it be said that there's a deprivation here if that offer was extended?

[00:17:45] Speaker 00:
In other words, so whatever problems there may have been with the level of communication there, the court was willing to put over the matter and address counsel's concerns

[00:17:55] Speaker 00:
in a way that could ensure confidential communications.

[00:18:01] Speaker 00:
I'm struggling to see how there was a deprivation of a constitutional right under those circumstances.

[00:18:06] Speaker 00:
Whatever you may say about whether the law enforcement agents could overhear something or not, just that there was a corrective element offered and instead, you know, defense counsel barreled toward a guilty plea.

[00:18:20] Speaker 01:
I think that's correct, but the one thing I will say is that even if you were inclined to say that there might otherwise have been a deprivation of counsel in the courtroom, this court has said, for example, in the Glover case, it's not aware of any case where the court has remedied a deliberate intrusion with dismissal.

[00:18:38] Speaker 01:
And that's an older case, but I'm still not aware of any case that has remedied an intrusion with dismissal.

[00:18:44] Speaker 01:
Instead, typically what happens is you suppress any damaging evidence and then you continue the matter for an opportunity for additional communications.

[00:18:52] Speaker 01:
So here, if there was a deprivation, as the case arrives at this court, there is no unremitted deliberate interference because the magistrate judge offered exactly what Felipe was entitled to, which was continuances for additional accommodations.

[00:19:07] Speaker 03:
I suppose on some level, I wonder why, when it's obvious that there have been other people in the room during the interpretation, why it's

[00:19:18] Speaker 03:
the defense's responsibility to say, I want the continuance, and not the judge's responsibility to say, I am going to continue this case, there has not been an opportunity for confidential communication.

[00:19:29] Speaker 03:
Why is that so?

[00:19:31] Speaker 01:
Your Honor, I don't know that it would be appropriate for a judge to unilaterally take a continuance on behalf of the defendant when defense counsel is saying, I don't want this.

[00:19:40] Speaker 01:
I want the detention hearing.

[00:19:41] Speaker 01:
I want the guilty plea.

[00:19:43] Speaker 01:
The defendant's prerogative to exercise or waive rights.

[00:19:46] Speaker 02:
Yes, but only if it's knowing, intelligent, and voluntary.

[00:19:49] Speaker 02:
And this judge made no effort whatsoever to establish that.

[00:19:52] Speaker 01:
I don't think that's correct.

[00:19:53] Speaker 02:
None whatsoever.

[00:19:54] Speaker 02:
He did not voir dire that defendant.

[00:19:56] Speaker 02:
The defendant, not the lawyer, he did not voir dire the defendant as we do in all of our cases to ensure that a waiver is knowing, intelligent, and voluntary.

[00:20:06] Speaker 01:
Your honor I think if you're referring specifically to the communication issue I guess that's correct, but I would take issue with the notion that the court did not Get a very thorough waiver of the rights that went along with proceeding to trial from page 28 to 35 of the record both the defendant and the defense attorney repeatedly said

[00:20:30] Speaker 01:
He wants to plead guilty.

[00:20:31] Speaker 01:
He's doing it knowingly and voluntarily.

[00:20:33] Speaker 02:
You're talking about the questioning for the entry of the plea.

[00:20:37] Speaker 02:
I'm talking about the motion.

[00:20:39] Speaker 02:
And I want to press back a little bit on your comfort with the transcript.

[00:20:44] Speaker 02:
I was quite surprised to hear the court say he denied the motion first in fairness to the government.

[00:20:50] Speaker 02:
That's completely backwards in our criminal justice system.

[00:20:53] Speaker 02:
It's in fairness to the defendant under the Constitution, not to the government.

[00:20:57] Speaker 02:
And the second thing you said, I know you've referenced this,

[00:21:00] Speaker 02:
Well, I'll make time available.

[00:21:01] Speaker 02:
What the magistrate judge actually said is, I'm sure I'll do it if it were genuinely necessary, which I don't understand.

[00:21:08] Speaker 02:
How can talking to your lawyer in freedom and confidentiality ever be not genuinely necessary?

[00:21:15] Speaker 02:
That's on page 19.

[00:21:17] Speaker 02:
So I don't think the transcript is as comforting as you find it.

[00:21:20] Speaker 01:
Your honor, I'll read from page 21 of the transcript.

[00:21:23] Speaker 01:
The court says, I believe an appropriate remedy would be to continue this hearing from this time to such later time as you request and give you an opportunity to discuss the matter further with your client in circumstances acceptable to you.

[00:21:34] Speaker 01:
That would include simply trailing the matter to the end of the day.

[00:21:37] Speaker 01:
So again, the court is being very open-ended.

[00:21:40] Speaker 02:
So end of the day, really?

[00:21:43] Speaker 02:
That in your view is an ample accommodation in this situation.

[00:21:47] Speaker 02:
I'll see you in a couple of hours.

[00:21:49] Speaker 01:
There's another reference on page 23 to again continuing for circumstances acceptable to you.

[00:21:54] Speaker 01:
I read the court is saying you can have a continuance and that can be till the end of the day.

[00:21:58] Speaker 01:
It can be for some other amount of time.

[00:22:00] Speaker 01:
Court is pretty open ended and it's pretty broad and saying these are going to be special.

[00:22:03] Speaker 01:
It's going to be special relief.

[00:22:04] Speaker 01:
It's going to be circumstances acceptable to you.

[00:22:06] Speaker 01:
All of that shows that the court is willing to accommodate defense counsel.

[00:22:10] Speaker 01:
Defense counsel simply did not take the court up on that request and defense counsel does have the prerogative to speak for the defendant.

[00:22:18] Speaker 00:
I guess on page 23 of the transcript, the court also says, I do not hear any evidence that any steps were taken to reasonably reassure yourself and your client that no one could hear the conversation.

[00:22:30] Speaker 00:
But nevertheless, regardless the relief, I think the appropriate relief under the circumstances is to give you more time to do more in circumstances in which you deem and the court deems appropriate, not dismiss the case.

[00:22:43] Speaker 00:
And and I take it at that point council could have said well can we arrange for a confidential communication and and Instead it was I guess a request to have the client released on bond.

[00:22:55] Speaker 01:
I believe that's correct your honor I see him out of time I'll simply say with respect to the actual policies the only thing that was actually addressed was the court's policy with respect to the tank that's the holding facility at the court and

[00:23:08] Speaker 01:
And there it was purely an assumption about what would be allowed or not allowed.

[00:23:13] Speaker 01:
There wasn't actually anything in the record, no proffer in the record, about efforts made regarding the pre-trial detention facility.

[00:23:19] Speaker 01:
And as the Kimmerer case we cite at page 15 of our brief suggests,

[00:23:23] Speaker 01:
That pre-child detention facility had in fact accommodated attorney client calls in the past Now I haven't spoken to prejudice at all, but I will just say that this was a knowing involuntary plea it's very clear and that Council says they were able to cover can I ask this was not a plea hearing right?

[00:23:40] Speaker 00:
This is a bond hearing

[00:23:43] Speaker 00:
And at the conclusion of that bond hearing, it was defense counsel that initiated that we would like to plead guilty after the denial of, right?

[00:23:52] Speaker 00:
So it wasn't the court that decided to set a plea hearing at that moment.

[00:23:57] Speaker 00:
It was defense counsel, was it not?

[00:23:59] Speaker 01:
That's correct, so you had those multiple discussions that we've been talking about at page 21 and 23 Defense counsel denies the offers of a continuance and says let's do the bond hearing they do the bond hearing and then the magistrate judge says is there anything else I can do for you and That's the point at which defense counsel says he wants to plead guilty So again, I don't think there's been a deprivation here.

[00:24:21] Speaker 01:
I also don't think there's been prejudice.

[00:24:23] Speaker 01:
I would ask the court to affirm Thank you Thank you We'll add two minutes to your time

[00:24:32] Speaker 04:
First, I'd like to note Judge Zanotto's point.

[00:24:35] Speaker 04:
The judge here did not voir dire Mr. Felipe.

[00:24:37] Speaker 04:
He could have done so extensively, and he could have done so about the situation that he'd heard of, that defense counsel put on the record six times that she did not have confidential communications with her client, and he didn't ask any questions about that.

[00:24:50] Speaker 00:
But counsel this is not an issue that's been raised on appeal right whether there was a Non-knowing involuntary waiver of rights at for the for the for the plea That's not something you briefed on appeal is it?

[00:25:03] Speaker 00:
It's not your honor, but it is it is within I mean I appreciate that just now is raising it And I think that makes sense, but it's not something that you raised on appeal in this case That is correct, okay and

[00:25:16] Speaker 04:
I also want to turn back to ER 23 where the judge is saying circumstances in which you deem and the court deems appropriate, but we know what the court deemed appropriate.

[00:25:27] Speaker 04:
He thought it was fine that defense counsel was meeting with her client in court with the US Marshals.

[00:25:33] Speaker 00:
I guess I have a bit of a different view of the transcript.

[00:25:36] Speaker 00:
I think my reading of the transcript was that defense counsel hasn't put forward any evidence in the record to indicate

[00:25:43] Speaker 00:
that there was overheard communications or that the defense counsel wasn't carrying their burden of showing a violation of the Sixth Amendment right.

[00:25:51] Speaker 00:
Not that it was fine, but just what's the evidence to support the motion?

[00:25:56] Speaker 04:
She carried that burden by stating six times on the record she did not have confidential communications, did not have privileged communications, did not have a safe space.

[00:26:04] Speaker 04:
She could not have said that in good faith if she felt that the marshals could not hear her.

[00:26:09] Speaker 04:
And the nature of relay interpretation

[00:26:11] Speaker 04:
where you have three people an hour trying to get a lot done in that amount of time, there's no whispering in this courtroom.

[00:26:17] Speaker 04:
So she could not have said that in good faith if the marshals were far away and couldn't hear.

[00:26:22] Speaker 04:
She was saying it because she honestly believed that it was impeding on her relationship with her client in that moment.

[00:26:28] Speaker 04:
And neither the judge nor the government objected to that at all.

[00:26:31] Speaker 04:
And they didn't object because it was obvious to everyone in the room what had happened.

[00:26:35] Speaker 00:
But I guess, let me ask you this, because this is an important point you're making.

[00:26:46] Speaker 00:
I guess the court was getting at, and maybe this is the wrong question to ask, but was there anything in the nature of what was impeding the communication between the attorney and the client with that presence?

[00:27:02] Speaker 00:
I mean, I think I'm a little skeptical of that sort of analysis because it sort of begs the question, well, that's why you need confidentiality.

[00:27:08] Speaker 00:
But what is your sense of the court going down that road?

[00:27:12] Speaker 04:
Your honor, this situation was akin to a police officer who just arrested a defendant sitting in on a meeting between a defense counsel and a defendant.

[00:27:21] Speaker 04:
That's what this was.

[00:27:23] Speaker 04:
And so the fact that it was United States Marshals, it was also Border Patrol, which was the very agency that arrested Mr. Felipe, that those individuals were in the room.

[00:27:31] Speaker 04:
They were in the room the entire time.

[00:27:33] Speaker 04:
And for that reason, it was still communication.

[00:27:37] Speaker 04:
It changed the dynamic of the conversations that she could and could not have with her client.

[00:27:44] Speaker 04:
Thank you very much.

[00:27:44] Speaker 04:
Great.

[00:27:45] Speaker 00:
Thank you, counsel, for your arguments.

[00:27:47] Speaker 00:
They've been very helpful, and the matter will stand submitted.