[00:00:00] Speaker 03:
So we've got a few matters on calendar today.

[00:00:03] Speaker 03:
And as I always say when I preside, when you appear before the Ninth Circuit, there are no bonus points or extra credit for using all of your time.

[00:00:13] Speaker 03:
So if you've made your points and you're not getting any questions back, it's okay to sit down.

[00:00:20] Speaker 03:
And with that, Mr. Gunn, good to see you.

[00:00:23] Speaker 03:
We'll call the first matter United States versus Godwin.

[00:00:25] Speaker 02:
Morning, Your Honor.

[00:00:27] Speaker 02:
As you just recognized, I'm Carl Gunn.

[00:00:28] Speaker 02:
I represent Mr. Godwin.

[00:00:32] Speaker 02:
Your Honors, what happened here, and in the absence of proceeding, goes against one of the most fundamental premises of our criminal justice system.

[00:00:44] Speaker 02:
I don't know about Your Honors, but it's something I haven't ever seen in more than 40 years of practice in federal appellate and district courts.

[00:00:52] Speaker 02:
And that includes 28 years as a federal public defender, where I saw lots of cases.

[00:00:57] Speaker 04:
So let me ask you about that.

[00:00:59] Speaker 04:
I take your point.

[00:01:00] Speaker 04:
It's unusual.

[00:01:02] Speaker 04:
What would you have had him do here?

[00:01:03] Speaker 04:
Just continue to give.

[00:01:05] Speaker 04:
I mean, obviously, in hindsight,

[00:01:07] Speaker 04:
You could say, well, just give one more extension.

[00:01:09] Speaker 04:
Right.

[00:01:09] Speaker 04:
But he didn't know that at the time.

[00:01:13] Speaker 04:
But is that what you would have him do in this situation?

[00:01:16] Speaker 02:
Your Honor, what I would have him do is simply vacate.

[00:01:19] Speaker 02:
This is a case where a warrant got arrested.

[00:01:22] Speaker 02:
So everyone knew several months ahead of time the defendant was out there somewhere and probably not going to come to court.

[00:01:28] Speaker 02:
What I think the judge should have done is vacate the sentencing date and then reset it once Mr. Godwin was arrested.

[00:01:37] Speaker 02:
If he wanted to have a date on calendar, he could have.

[00:01:40] Speaker 04:
He had already been out for three months at this point.

[00:01:48] Speaker 04:
You have to look at that in context.

[00:01:50] Speaker 04:
What if he had been on the run for another three months?

[00:01:52] Speaker 02:
So what he could have set a status conference for, left the matter on as a status conference.

[00:01:59] Speaker 02:
Obviously if it's, you know, it's probably, he might have wanted the prosecutor to check with the marshals and bring in a report every couple of months.

[00:02:07] Speaker 00:
I had a question about that.

[00:02:10] Speaker 00:
Is there, this really all happened only in a matter of hours after the close of that hearing.

[00:02:17] Speaker 00:
Is there any information in the record about

[00:02:20] Speaker 00:
when the government knew where he was.

[00:02:25] Speaker 02:
You have two competing premises, and that goes to my second issue, Your Honor, of there being air and not at least holding a hearing.

[00:02:32] Speaker 02:
The defense attorney filed a motion as soon as he found out Mr. Godwin was in custody, which was the day after.

[00:02:38] Speaker 02:
And what he said in his motion was it's unclear whether he was in custody at the time of the sentencing, at the very hour.

[00:02:47] Speaker 00:
question is actually even before being in custody because in order to arrest him someone had to know where he was and so to me the question is when did they know where he was which could have preceded the arrest by a day or an hour or a minute

[00:03:05] Speaker 02:
All there is in the record, Your Honor, is what I just described defense counsel indicating, which didn't include any information about that.

[00:03:14] Speaker 02:
The prosecutor in response claimed that the police had run across him in a stop around 5 p.m.

[00:03:23] Speaker 02:
and arrested him when he ran, about a half hour after he ran.

[00:03:27] Speaker 02:
The problem is you have two competing sort of possibilities there and that's why it was at the very least important to hold a hearing under that Brewer case.

[00:03:37] Speaker 02:
I'm sorry.

[00:03:37] Speaker 04:
I'd like to drill down on that because I'm not aware.

[00:03:40] Speaker 04:
I mean the only thing I saw was the 515 statement which has its own problems because it wasn't from the police officer.

[00:03:49] Speaker 04:
There wasn't a police report attached.

[00:03:51] Speaker 04:
But what are you relying on to say that he was actually

[00:03:54] Speaker 04:
You said that the defense counsel said that he was in custody before the hearing ended at 2 56.

[00:04:01] Speaker 02:
No, no, that it might have been that it was possible.

[00:04:03] Speaker 02:
It's an excerpts of record in the motion, your honor.

[00:04:06] Speaker 02:
I guess my question is, well, go ahead, give it that to us first.

[00:04:09] Speaker 02:
It's an excerpts of record.

[00:04:13] Speaker 02:
32, the defense motion says, quote, it appears quite possible that he may have been unable to attend his sentencing.

[00:04:21] Speaker 04:
I guess I'm wondering why that even creates a factual dispute.

[00:04:24] Speaker 04:
I mean, that really accounts to almost nothing.

[00:04:28] Speaker 04:
It's possible.

[00:04:29] Speaker 04:
Well, I mean, there's no basis.

[00:04:31] Speaker 04:
There's no factual statement.

[00:04:32] Speaker 04:
There's no suggestion.

[00:04:33] Speaker 04:
The only facts we have, which are not

[00:04:36] Speaker 04:
solid but is that at 515 they located him.

[00:04:40] Speaker 02:
Well it seems to me that you have to have a hearing to figure out what those facts are rather than just take a double or triple hearsay from the government in a opposition it filed on two hours notice or whatever.

[00:04:53] Speaker 00:
There was no sworn evidence of any kind about the timing, is that right?

[00:04:57] Speaker 02:
No, all there was, the government's, the motion I just read is two pages, the excerpt of record 3132, and the government's response is the excerpt of record 2930.

[00:05:08] Speaker 02:
And I think it basically says what I just described.

[00:05:13] Speaker 02:
But, I mean, that, of course, begs the question of what standards should have been applied at the initial finding.

[00:05:20] Speaker 02:
The sort of, obviously, we've got the Ornelas case and the Hutchins case.

[00:05:26] Speaker 02:
Hutchins held, all you need is a finding of voluntary absence.

[00:05:30] Speaker 02:
And after that, the district judge is basically free to do whatever he or she wants.

[00:05:35] Speaker 02:
Hutchins should not be extended the sentencing context for a couple of reasons.

[00:05:40] Speaker 02:
First of all,

[00:05:41] Speaker 02:
it creates a split in the circuits already in the trial context, and there's no reason to aggravate that by creating the same split in the sentencing context.

[00:05:53] Speaker 02:
Second, trial is very different than sentencing.

[00:05:56] Speaker 02:
You have constitutional and statutory speedy trial rights at trial that you don't have at sentencing.

[00:06:03] Speaker 02:
By the way, I'm going to try to save two minutes of rebuttal if I can.

[00:06:08] Speaker 02:
You have a bunch of other participants who are in convenience, not just the attorneys and judges.

[00:06:14] Speaker 02:
The defendant is probably much more important at sentencing than at trial, where most of the time the defendant doesn't even testify, and when he does, he's only one of a number of non-attorney witnesses speaking.

[00:06:28] Speaker 02:
So you shouldn't extend the sentencing context, and Ornelas did not do that.

[00:06:33] Speaker 02:
I've gone back and read Ornalis very carefully, and you can also go back and read the briefs.

[00:06:39] Speaker 02:
Not only did Ornalis not decide the question of whether there should be a balancing test after the finding of voluntary absence, but it wasn't argued in the briefs.

[00:06:48] Speaker 02:
Ornalis decided two things.

[00:06:50] Speaker 02:
It decided what the standard of review should be for what the district court did.

[00:06:54] Speaker 02:
which in that case was to make a finding of voluntary absence.

[00:06:57] Speaker 02:
It said that should be an abuse of discretion or view.

[00:07:00] Speaker 02:
And then it said we're not going to adopt this enhanced standard that the Seventh Circuit did.

[00:07:06] Speaker 02:
That's all Ornelas decided.

[00:07:08] Speaker 02:
Ornelas did not address whether Huchin's rejection of the balancing test should be extended to sentencing.

[00:07:16] Speaker 02:
So Ornelas, the question's open before this court and especially in the sentencing context where in most cases the inconvenience is going to be relatively low, you should at least have a balancing test.

[00:07:29] Speaker 02:
Well, the only harm here, maybe in the sentencing context, is people spend time preparing that they didn't have to prepare.

[00:07:37] Speaker 02:
But that wasn't true here because the court could have vacated the sentencing date.

[00:07:40] Speaker 02:
Then you wouldn't even spend that time preparing.

[00:07:43] Speaker 02:
So there's just absolutely no reason, and in hindsight, lots of no reason, given that Mr. Godwin was quickly arrested.

[00:07:50] Speaker 04:
And the hindsight becomes a little bit more problematic because he actually moved to ask for, what was it, a motion after he was

[00:08:00] Speaker 04:
Captain, didn't the defense counsel file a motion to come back in for re-sentencing?

[00:08:07] Speaker 04:
Right, right.

[00:08:08] Speaker 04:
He did.

[00:08:08] Speaker 04:
But, I mean, I'm not relying on the hindsight, but just the hindsight illustrates.

[00:08:13] Speaker 04:
No, I'm actually saying hindsight becomes, yeah, it helps you because there was a motion there.

[00:08:18] Speaker 04:
One more question.

[00:08:19] Speaker 04:
Just to be clear, this is not a claim that the

[00:08:24] Speaker 04:
sentence itself was unconstitutional, but that there may have been some constitutional infirmities in the process.

[00:08:33] Speaker 04:
Is that correct?

[00:08:37] Speaker 02:
Yes.

[00:08:38] Speaker 02:
I mean, very fundamental.

[00:08:41] Speaker 03:
Let me follow up on that question because there was an appellate waiver in this case.

[00:08:46] Speaker 03:
Correct.

[00:08:48] Speaker 03:
And so one of the questions is that, does that appellate waiver cover this?

[00:08:52] Speaker 03:
And there's a case before our court right now that's gone in bank that may answer that question.

[00:08:56] Speaker 02:
The Atherton case, I think you're referring to.

[00:08:59] Speaker 03:
Right.

[00:08:59] Speaker 03:
So I'm going to give you a little more time.

[00:09:02] Speaker 03:
So don't worry.

[00:09:03] Speaker 03:
Keep going.

[00:09:04] Speaker 03:
But what do we do in that situation?

[00:09:05] Speaker 03:
If Atherton comes out the way the government wants it, does any of this ultimately matter?

[00:09:11] Speaker 02:
I think it does because the procedural issue here is I think more is different and more central than the procedural issue in Atherton.

[00:09:23] Speaker 02:
As I recall, and I haven't read Atherton-Caferly because it wasn't cited or brought up in any of the briefings.

[00:09:29] Speaker 02:
It's gone.

[00:09:30] Speaker 02:
But as I recall, the issue there was sort of the impropriety in the way evidence was considered or something like this.

[00:09:38] Speaker 02:
Here we're dealing with something more fundamental.

[00:09:40] Speaker 02:
We're dealing with proceeding without the

[00:09:44] Speaker 02:
most important party even there.

[00:09:46] Speaker 02:
So I think that's different than what's going to be presented in Atherton.

[00:09:52] Speaker 03:
I have one final question for you and we will give you the two minutes for rebuttal.

[00:09:57] Speaker 03:
This issue was not briefed but this case involved a certain district court judge who has since

[00:10:02] Speaker 03:
resigned.

[00:10:03] Speaker 03:
And I know there have been some having to redo stuff.

[00:10:06] Speaker 03:
I didn't see anything about that in this case.

[00:10:09] Speaker 03:
So I'll ask the prosecution the same question.

[00:10:10] Speaker 03:
Is this one of the cases that is being looked at to be redone because of who the district court judge was?

[00:10:15] Speaker 02:
If you go back to the record in this case, Your Honor, you'll see that we stayed it for about six months to have that investigated.

[00:10:21] Speaker 02:
Um, and there was, uh, district court counsel was appointed for that and then we decided to go forward with the appeal.

[00:10:28] Speaker 02:
So there's nothing pending right now.

[00:10:31] Speaker 02:
I certainly don't want to suggest that there might not be something discovered later.

[00:10:36] Speaker 02:
Um, but, um, that is a certainly an underlying troubling aspect of the case whenever you have a Judge Kindred case, I guess, but.

[00:10:44] Speaker 03:
Very well.

[00:10:45] Speaker 03:
Okay.

[00:10:45] Speaker 03:
We'll go ahead and give you two minutes for rebuttal.

[00:10:47] Speaker 03:
Thank you.

[00:10:48] Speaker 03:
Thank you, counsel.

[00:10:56] Speaker 01:
Thank you.

[00:10:57] Speaker 01:
May it please the court, Amy Miller on behalf of the United States.

[00:11:01] Speaker 01:
This court should enforce Godwin's valid appellate waiver and dismiss this appeal.

[00:11:07] Speaker 01:
From the government's perspective, this case should back up and this court should look at specifically the appellate waiver in this case.

[00:11:15] Speaker 01:
Mr. Godwin knowingly and voluntarily entered into the plea agreement and as well as had a knowing and voluntary waiver of his appellate rights.

[00:11:25] Speaker 00:
Except that, counsel, he waived the right to appeal on all the grounds contained in Section 3742, which does not, none of the sections mentioned in the plea agreement either contains constitutional claims or the procedure by which the sentencing occurs.

[00:11:47] Speaker 00:
So why should we read those extra things into the plea waiver?

[00:11:52] Speaker 01:
This plea the plea waiver would have encompassed those those 2 points this plea waiver specifically phrase that if it was if the district court sentenced.

[00:12:07] Speaker 01:
not beyond the statutory max, then the defendant would waive all appellate rights, specifically under 3742, which would have included an illegal sentence, a sentence imposed as a result of an incorrect application of the guideline range, or if the sentence imposed was greater than the sentence in this bill.

[00:12:29] Speaker 00:
That's exactly my point.

[00:12:30] Speaker 00:
None of those has anything to do with the procedure by which he was sentenced.

[00:12:35] Speaker 00:
They are substantive.

[00:12:37] Speaker 00:
And the right of allocution can result in a different sentence.

[00:12:42] Speaker 00:
Just, you know, that is one of the reasons why it exists.

[00:12:48] Speaker 00:
So I still don't understand why you think that those references to 3742 waive the right to challenge the fundamental procedure by which the sentencing occurred.

[00:13:04] Speaker 01:
And this court has already alluded to in the questions to counsel that that question of the extent of the appellate waiver when it comes to constitutional claims is being

[00:13:18] Speaker 01:
considered by this court on bonk I believe next month.

[00:13:22] Speaker 01:
So but here this appellate waiver did include illegal sentences and this court in bibler has decided or has stated that an illegal sentence is one that exceeds the permissible statutory penalty or violates the Constitution.

[00:13:37] Speaker 00:
That's again about the substantive sentence.

[00:13:41] Speaker 00:
Let me ask you a different question.

[00:13:43] Speaker 00:
At the hearing, counsel said that, among other things, that he wasn't sure whether the defendant knew of the recently changed date of the sentencing and the court didn't believe the lawyer.

[00:13:59] Speaker 00:
What do we make of that in terms of voluntariness?

[00:14:05] Speaker 01:
So in the Hutchins case, this court addressed, in the trial context, the question of when the defendant may not have had notice of a specific date of the hearing.

[00:14:16] Speaker 01:
In that case, the trial was set twice.

[00:14:19] Speaker 01:
The defendant knew of those specific dates, and then it was continued from there.

[00:14:23] Speaker 01:
And the court ultimately said that it's rewarding his own lack of staying in contact with his attorney or knowing of the date and found that there was no issue on that specific point of not knowing the date.

[00:14:37] Speaker 01:
Here we back up.

[00:14:38] Speaker 01:
The defense counsel admitted to the court the last contact that he had had with Mr. Godwin was the change of plea.

[00:14:47] Speaker 01:
At that hearing, the magistrate judge specifically ordered him to be present

[00:14:52] Speaker 01:
at the sentencing date on September 6th at 11 a.m.

[00:14:56] Speaker 01:
Mr. Godwin himself clarified the time, asked the court the date and the time again.

[00:15:02] Speaker 01:
It was said about three times throughout that hearing.

[00:15:05] Speaker 01:
And he was not present.

[00:15:09] Speaker 01:
based on the record, the limited record we have.

[00:15:12] Speaker 01:
There's no indication that he was present on September 6th and can acknowledge that that date was moved to the 7th and then to the 12th.

[00:15:20] Speaker 01:
But if you back up before that, the arrests weren't issued in June.

[00:15:25] Speaker 00:
But the fact that he didn't show up at something that didn't happen doesn't really tell us whether his showing up, his not showing up to the second continued date

[00:15:37] Speaker 00:
was or was not voluntary.

[00:15:39] Speaker 00:
I think what bothered me the most about it was the judge simply saying that he didn't believe the lawyer who said I could make indirect contact with him and I'm not sure he knows of this date.

[00:15:52] Speaker 04:
But isn't your point that that doesn't really matter because the case law suggests that if he's withholding contact from his lawyer, then whether he knew about it is irrelevant.

[00:16:04] Speaker 04:
I mean, maybe that doesn't address, maybe that means that the district court gave the wrong reason because the district court said, I didn't believe you.

[00:16:13] Speaker 04:
He didn't say it doesn't matter.

[00:16:16] Speaker 01:
And I apologize, Your Honor, the specific reference of the district court, I will admit I'm not familiar with that specific point in the record.

[00:16:24] Speaker 01:
But in the record, the court did address that he had not been in contact.

[00:16:31] Speaker 01:
And yes, to your question, that that specific point would not necessarily be the deciding factor in... Although that's not what the judge said.

[00:16:41] Speaker 04:
The judge said, I don't believe you.

[00:16:45] Speaker 04:
Does that matter?

[00:16:48] Speaker 01:
I would say no, Your Honor, that here when you look at all of the information that the court had, that he, Mr. Godwin, at the plea knew that if there was some, that the sentencing date was not going to be continued, that he could not ask for a continuance.

[00:17:06] Speaker 01:
and that if he had any sort of violation, he would be remanded immediately.

[00:17:13] Speaker 01:
And then we have the incident in June where he is at the airport trying to leave state with a female trying to, with over $20,000 hidden in her clothing.

[00:17:24] Speaker 01:
And he lied about saying that his probation officer had given him permission to go shopping in Seattle.

[00:17:31] Speaker 01:
And then you have an extensive period with no contact.

[00:17:35] Speaker 01:
And his attorney represented to the court, I have been in contact with people who I believe have been in contact with Mr. Godwin.

[00:17:43] Speaker 01:
The court had all of that information.

[00:17:45] Speaker 01:
ultimately stated that for the objections that the defense was putting forth to the PSR that Mr. Godwin's presence would not have made a difference to the court ultimately in whether whether or not those objections were

[00:18:03] Speaker 01:
that he ultimately was not going to give him the benefit of acceptance of responsibility and he was adding the additional points for obstruction of justice based on the violations and the conduct up until that point.

[00:18:17] Speaker 04:
Can we decide this case before Atherton?

[00:18:21] Speaker 04:
And the reason I ask that is because I think under our current precedent, I mean, I guess you have an argument that even under our current precedent, there's still a waiver.

[00:18:32] Speaker 04:
But if we can't just assume jurisdiction, right?

[00:18:38] Speaker 04:
If we think that there might not be a waiver here and that Atherton may weigh on that, can we just assume that there was no waiver?

[00:18:45] Speaker 04:
Or is that like a, is that a, I mean, we dismiss it, is it a jurisdictional, it's a jurisdictional issue, but it's not a subject matter jurisdiction, I don't think.

[00:18:54] Speaker 01:
So I would say that Atherton could inform this court's decision on this specific appellate issue.

[00:19:01] Speaker 01:
And I guess going back to your honor's initial point or question about procedural constitutional challenge versus a challenge to the sentence.

[00:19:14] Speaker 01:
The Wells case specifically addresses some of that point, which I know that is in question, I guess, as part of the Atherton decision.

[00:19:24] Speaker 01:
But Wells stated that the appellate or waiver exception for constitutional challenges applies to the substance of the sentence and not the process by which the sentence was imposed.

[00:19:40] Speaker 01:
As counsel agreed on your questions, that this is going to the process with which the sentence was imposed.

[00:19:49] Speaker 01:
And so ultimately, if the appellate waiver in this context and in this specific case, I think the court could consider that.

[00:20:01] Speaker 01:
even maybe separately from Atherton, but it could inform the court's decision.

[00:20:06] Speaker 04:
So your point is we could say there was an appellate waiver under our current precedent, then we're subject to whatever Atherton, we're opening ourselves up to whatever Atherton does to change that law, perhaps.

[00:20:18] Speaker 01:
Perhaps.

[00:20:19] Speaker 04:
But my more fundamental question is if we think that regardless of whether there was an appellate waiver, that the claims don't work here, that they're just, he doesn't have a claim, can we assume

[00:20:30] Speaker 04:
That the appellate waiver does not apply or should if or is that not a permissible route to us And if we're gonna go down that route, we should just wait for atherton.

[00:20:42] Speaker 01:
I Would say yeah, if you're assuming that the appellate waiver does not apply then it would be Beneficial to wait and see what the court does in atherton but here because this specific appellate waiver is addressing more

[00:20:58] Speaker 01:
the defendant's constitutional challenge to the procedure, it would make sense that the court could still address it today.

[00:21:06] Speaker 01:
And I see.

[00:21:07] Speaker 01:
I'm out of time.

[00:21:07] Speaker 01:
So we would ask.

[00:21:08] Speaker 01:
Any other questions?

[00:21:09] Speaker 03:
No.

[00:21:09] Speaker 03:
All right.

[00:21:10] Speaker 03:
Thank you, counsel.

[00:21:10] Speaker 01:
Thank you.

[00:21:14] Speaker 02:
I had a copy of Atherton here, Your Honor, to look back to refresh my memory.

[00:21:18] Speaker 02:
Atherton is really dealing on a much more sort of into the process procedural issue, if I can put it that way.

[00:21:26] Speaker 02:
It was relying on false or unreliable information during sentencing.

[00:21:31] Speaker 02:
This is a fundamental issue of whether you can go forward without the defendant even there.

[00:21:36] Speaker 02:
That's almost analogous to something like proceeding with the right to counsel versus a Fourth Amendment issue or something, I think.

[00:21:44] Speaker 02:
However, Atherton gets decided, and I guess, Your Honors, if you wanted to, could wait and see how it's written.

[00:21:50] Speaker 02:
But however Atherton gets decided, I don't think it's going to control on the sort of fundamental due process violation that we have here.

[00:21:59] Speaker 04:
And assuming Atherton is narrow, like you're suggesting, or doesn't address this issue, then the case you'd be relying on is Ornelius?

[00:22:07] Speaker 02:
Well, I'm not relying on Ornelius.

[00:22:09] Speaker 02:
I'm saying Ornelius doesn't reach this issue.

[00:22:11] Speaker 02:
And then I'm relying on sort of all the reasoning and the basis.

[00:22:16] Speaker 02:
Is it Brewer?

[00:22:17] Speaker 02:
What's the case?

[00:22:19] Speaker 02:
that would help you.

[00:22:20] Speaker 02:
It's really the cases from all the other circuits except this circuit that even in the trial context recognize there should be a balancing even if there's voluntary absence.

[00:22:31] Speaker 02:
I did want to give a couple more points on a couple of questions Judge Graber asked.

[00:22:36] Speaker 02:
Judge Graber, you asked about this being a different date than Mr. Godwin was told about.

[00:22:43] Speaker 02:
Not only that is, you know, I'm not saying that Mr. Godwin was there on September 6th, but we actually don't know that he wasn't.

[00:22:50] Speaker 02:
All there is in the record is a representation by the prosecutor that she was in the courthouse and he wasn't there.

[00:22:56] Speaker 02:
But she's not saying I was, you know, it's not clear whether she was at the courtroom, what time she was there, etc.

[00:23:02] Speaker 02:
So at least on this record, we don't even know for sure that Mr. Godwin wasn't there on September 6th.

[00:23:07] Speaker 02:
I also wanted to, Judge Graber noted about Mr. Godwin's attorney indicating he'd had some sort of indirect contact through others.

[00:23:17] Speaker 02:
I think that goes, Judge Nelson, to the question you asked sort of of what reason was there to even hope he might be found.

[00:23:25] Speaker 02:
I think the fact that there was some indirect contact combined with the fact that he's a long-time Alaska resident, not a foreign citizen, who you'd expect... Now, please justify the hearing.

[00:23:35] Speaker 02:
Well, and more than that, it justified waiting at least a few months to see if he got found or got brought in.

[00:23:42] Speaker 02:
Huh?

[00:23:43] Speaker 02:
Pardon me?

[00:23:44] Speaker 02:
They did wait three months.

[00:23:44] Speaker 02:
Right.

[00:23:45] Speaker 02:
Well, I have a few months more, and maybe a few months after that, depending on what things look like.

[00:23:49] Speaker 03:
But as to your point, though, let's say we were to think on issue one, as in my mind, is did the district court abuse his discretion on that day?

[00:23:58] Speaker 03:
I think you make a pretty good argument, no, he did not.

[00:24:01] Speaker 03:
But once it was revealed that the guy was arrested later that day, then your point is, at the very minimum, have a hearing.

[00:24:08] Speaker 03:
And so we have not conferenced in this case yet, obviously, but if we were to agree with the prosecution on issue one, but agree with you on issue two, then I guess the process we set our hearing before our new judge to determine whether it was voluntary and if it was a voluntary absence, then maybe the case is over, but if it wasn't a voluntary absence, then it would be remanded for resensing.

[00:24:29] Speaker 02:
I think that's correct, but I'd like to take you back to that first issue.

[00:24:33] Speaker 02:
I'm sure you would.

[00:24:35] Speaker 02:
I really do think that, you know, in the sentencing context, you know, I once had a case where a defendant absconded in the middle of the trial, and the judge did not actually proceed in absentia.

[00:24:47] Speaker 02:
He declared a mistrial.

[00:24:49] Speaker 02:
But, you know, that's worse.

[00:24:50] Speaker 02:
How long was he gone?

[00:24:51] Speaker 02:
The defendant?

[00:24:52] Speaker 02:
I think she's still gone because she's from Mexico.

[00:24:56] Speaker 02:
I have stories I tell about that case, Your Honor.

[00:24:59] Speaker 02:
But the point I'm making is there, you know, if the judge had gone forward there, I mean, you know, I'd sort of be between a rock and a hard place complaining because you had the jury there, you had all the witnesses who had already testified.

[00:25:11] Speaker 02:
Illustrative in that case is one of the witnesses I heard later died.

[00:25:15] Speaker 02:
I mean, in the trial context, there's lots of reasons you might go forward in absentia.

[00:25:19] Speaker 02:
In the sentencing context, there really isn't.

[00:25:21] Speaker 02:
It's really the only reason to go forward in most instances is you just want to get the case off the books.

[00:25:26] Speaker 02:
Should that override the sort of fundamental need to have the person who's getting 20 years in prison be there?

[00:25:34] Speaker 03:
I'd submit no.

[00:25:34] Speaker 03:
All right.

[00:25:36] Speaker 03:
Thank you, counsel.

[00:25:37] Speaker 03:
Thanks to both of you for your briefing and your argument today.

[00:25:39] Speaker 03:
I want to commend you, Mr. Gunn, for your many years of service to the defense bar.

[00:25:43] Speaker 03:
I think I see Ms.

[00:25:44] Speaker 03:
Sun back there as well.

[00:25:46] Speaker 03:
So thank you both for your many, many years.

[00:25:47] Speaker 03:
You're clearly not doing this for the money, and you've been doing this for a long time.

[00:25:51] Speaker 03:
So we want to thank you.

[00:25:52] Speaker 03:
This matter is submitted, and we'll move on to the next case.