[00:00:00] Speaker 01:
Your honors, good morning.

[00:00:02] Speaker 01:
My name is Gary Burcham.

[00:00:03] Speaker 01:
I represent the appellant, Mr. Casares in this case.

[00:00:07] Speaker 01:
I'd like to reserve two minutes for rebuttal, if that's okay.

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

[00:00:10] Speaker 01:
As soon as Mr. Casares pled guilty to the two counts with the mandatory minimum drug quantities in the information, defense counsel's number one job at that point was to make sure he qualified for safety valve.

[00:00:21] Speaker 01:
These were 10-year mandatory minimum cases.

[00:00:24] Speaker 01:
Four of the five safety valve elements were already, were not in dispute in this case.

[00:00:29] Speaker 01:
The only one which was in dispute was the truthful disclosure element.

[00:00:33] Speaker 01:
Instead of defense counsel getting to work on safety valve in a timely fashion and working to make sure safety valve was met in this case,

[00:00:45] Speaker 01:
defense counsel with eight months before doing anything with respect to trying to satisfy safety valve and Then once counsel did get to work on it.

[00:00:52] Speaker 01:
He didn't do the follow-up necessary to make sure that mister

[00:00:54] Speaker 01:
Costa race was able to receive a sentence less than 10 years, which the district court said it would have imposed had a safety valve been met in this case.

[00:01:02] Speaker 04:
Counsel, can I just direct you to the main thing?

[00:01:04] Speaker 04:
I think that there's some issues with how counsel represented your client below.

[00:01:11] Speaker 04:
I also think there's some issues with the district court's decision.

[00:01:14] Speaker 04:
But what I'm not clear about is how any of this prejudiced your client, given what we have been told would have been said had the attorney

[00:01:23] Speaker 04:
gotten things in the record in a timely manner.

[00:01:26] Speaker 01:
I thought that question might be coming early.

[00:01:28] Speaker 01:
There it is.

[00:01:30] Speaker 04:
I mean, if he had said in that supplemental declaration, yeah, I lied, here's the real story, then maybe we would be looking at that and thinking, oh, that might have made a difference.

[00:01:40] Speaker 04:
But he kind of doesn't say that.

[00:01:42] Speaker 04:
He just gives more details for the story he already gave.

[00:01:45] Speaker 01:
He does.

[00:01:47] Speaker 01:
And I put those in his declaration, which I provided once I was appointed.

[00:01:51] Speaker 01:
I got that from Mr. Casares.

[00:01:53] Speaker 01:
I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm

[00:02:06] Speaker 01:
and told the district judge that he wasn't done, he needed more time for this.

[00:02:09] Speaker 01:
The district judge was very critical of that, very upset.

[00:02:13] Speaker 01:
But the problem is that it wasn't done.

[00:02:14] Speaker 01:
And the reason why that matters in this case is because Mr. Costres had two chances to get safety valve in this case.

[00:02:21] Speaker 01:
Convince the government that he was making a truthful and complete statement about the offense.

[00:02:26] Speaker 01:
But if that wasn't going to work, and the prosecutor certainly had doubts in this case about his account in the first proper letter.

[00:02:33] Speaker 01:
then make a good record for the district court to do its independent analysis of the same question.

[00:02:40] Speaker 04:
But what in that supplemental information that you put in the record indicates that the court would have reached a different conclusion?

[00:02:48] Speaker 01:
Well, the problem with

[00:02:51] Speaker 01:
the district courts ability to decide this is when everyone showed up in in november for sentencing the district court had only read the government side the district court uh... the government filed a sentencing memorandum six days before the october hearing defense counsel submitted his proffer to the government the same day and at that point realized that he had a real problem here safety valve wasn't being recommended in this case and instead of defense counsel

[00:03:20] Speaker 01:
Filing a supplemental proffer with the government or in the record with the district court or setting up a debriefing where this all could be hashed out in one time in 45 minutes in an office at the U.S.

[00:03:33] Speaker 01:
Attorney's Office.

[00:03:35] Speaker 01:
Council showed up with the strategy, and it's not a strategy, of just arguing this matter to the district court as sentencing.

[00:03:42] Speaker 01:
And it's clear when you read the sentencing transcript that the government had read the government's submission.

[00:03:48] Speaker 01:
It had read nothing from the defense, and so as far as the... What was there to have read from the defense?

[00:03:55] Speaker 01:
I'm sorry?

[00:03:55] Speaker 04:
What was there to have read from the defense?

[00:03:58] Speaker 04:
Defense counsel should have filed a detailed... Okay, but should have filed, that doesn't mean that the district court was only reading one side of the case.

[00:04:06] Speaker 01:
That's correct, but the district court didn't have a copy of...

[00:04:10] Speaker 01:
of the proper letter at the time the sentencing occurred.

[00:04:13] Speaker 04:
Right, but your argument seems to suggest the district court was only reading the government stuff and was ignoring the defense stuff.

[00:04:19] Speaker 04:
But then you're saying the defense actually didn't file anything.

[00:04:21] Speaker 04:
So the district court didn't make a mistake of only selectively reading.

[00:04:24] Speaker 01:
Of course not, Your Honor.

[00:04:25] Speaker 01:
I misspoke.

[00:04:26] Speaker 01:
The defendant filed the sentencing memorandum, but nothing in the memorandum dealt with the safety valve issue.

[00:04:31] Speaker 01:
That's a better answer to your question.

[00:04:33] Speaker 04:
Right, and I get that.

[00:04:34] Speaker 04:
And so I keep coming back to, but you have now put in the record what would have been said

[00:04:39] Speaker 04:
had the underlying attorney done the right thing, and what in there shows us that any sort of different decision would have been reached?

[00:04:48] Speaker 01:
Well, there were additional facts beyond what the prosecutor was given with the proffer letter.

[00:04:58] Speaker 01:
What this case really called for was a debriefing.

[00:05:01] Speaker 01:
And when you submit, this is like the last case.

[00:05:04] Speaker 01:
This is a drug import case.

[00:05:05] Speaker 01:
We have hundreds of these every year in San Diego.

[00:05:08] Speaker 03:
And typically... Right.

[00:05:10] Speaker 03:
I'm really struggling with the same thing that Judge Forrest is in that, you know, at the... I think counsel could have done more.

[00:05:18] Speaker 03:
Normally, the debriefings are done in person.

[00:05:21] Speaker 03:
That's the best way.

[00:05:22] Speaker 03:
And so the government can ask the questions and address whatever concerns you had.

[00:05:27] Speaker 03:
But this was during that somewhat sensitive COVID period where we weren't meeting in person.

[00:05:34] Speaker 03:
And so it did put the defense counsel in the difficult position of having to sort of address

[00:05:41] Speaker 03:
why the government didn't think that the story was credible.

[00:05:45] Speaker 03:
But instead of saying, well, I've now consulted with my client and he admits that he was untruthful and here's the truth, counsel really doubled down because he didn't have anything contrary from his client, doubled down on the story and provided more details.

[00:06:00] Speaker 03:
And the court fully considered that.

[00:06:01] Speaker 03:
It was a very lively engagement, a back and forth between the district court and defense counsel at sentencing.

[00:06:08] Speaker 03:
So whatever

[00:06:11] Speaker 03:
admissions the defendant might have could have made regarding why his story was incredible instead he doubled down on that and said this was really the story right and here are some additional details for you to consider in the district court considered all of that and still found that it was incredible so I just I still don't know what would have made the difference because he keeps sticking with the same story and that story was not believed by the government and apparently by the court

[00:06:42] Speaker 01:
The additional facts he provided, that I provided in the declaration, should have been provided in a supplemental profit to the government and say, okay, you have issues with these areas, here's extra information to show why he's being truthful and complete as to these areas.

[00:07:00] Speaker 01:
And then if the government would have said, well, we still don't think he's being truthful and complete as to the number of crossings and the vehicles used and the timing of the crossings,

[00:07:10] Speaker 01:
Then you have a debriefing.

[00:07:11] Speaker 01:
I mean, that's how these works.

[00:07:12] Speaker 01:
You send the proper letter and if the little back and forth doesn't settle the matter, you have a debriefing.

[00:07:17] Speaker 01:
And you're right, this was COVID.

[00:07:18] Speaker 01:
But we're now in, you know, September, October, November when the MCC was never closed.

[00:07:24] Speaker 01:
I mean, it was a little more difficult to see people, but it was open for business the entire time.

[00:07:29] Speaker 01:
And the prosecutor said in this case that if counsel would have reached out and said, I want to do a debriefing, she said she would have set that up.

[00:07:34] Speaker 01:
Maybe not in person, but video teleconference or telephonic.

[00:07:39] Speaker 01:
This case was screaming for a debriefing.

[00:07:41] Speaker 01:
And that's what defense counsel should have done in this case, which was when the written proffer wasn't going to suffice, you have a debriefing.

[00:07:50] Speaker 01:
And that's what any competent counsel would have done in this situation.

[00:07:53] Speaker 01:
Yes, things were a little more difficult logistically because of the timing.

[00:07:59] Speaker 01:
But not even asking for a debriefing was shocking to me, given that

[00:08:04] Speaker 01:
The written proffer was not accepted.

[00:08:07] Speaker 01:
There was some back and forth after that between defense counsel and the government.

[00:08:12] Speaker 01:
Apparently, that didn't carry the day.

[00:08:14] Speaker 01:
This had to have a debriefing.

[00:08:15] Speaker 01:
It was never asked for.

[00:08:16] Speaker 00:
Is your position that you just have to have a debriefing, or is it something about this case that means that the lack of a debriefing is just positive, but I'm trying to figure out, is it just that if you don't have a debriefing, then that is reversible?

[00:08:32] Speaker 01:
No, no.

[00:08:33] Speaker 01:
Just this case, Your Honor.

[00:08:34] Speaker 01:
Most cases don't have debriefings.

[00:08:36] Speaker 00:
Because the reason I'm at it, and I know you're going to talk about it, the reason I'm... Because if your defense counsel here, and if you think

[00:08:46] Speaker 00:
My guy, you know, the government doesn't believe, and you know, and we don't know that, right?

[00:08:51] Speaker 00:
We don't know everything the defense counsel knew, but you know that he's just going to give a few more details, but you don't think that that's going to convince the government.

[00:08:58] Speaker 00:
What do you do as defense counsel in that circumstance?

[00:09:01] Speaker 00:
You have a debriefing and the person's just going to give a few more details to support a story that you know the government doesn't believe, and you don't think the government's probably going to change its mind based on those few more

[00:09:12] Speaker 00:
what the government thinks are false details.

[00:09:14] Speaker 00:
You see, I'm saying, I'm not sure if it's not a hard and factual that you have to have a debriefing.

[00:09:18] Speaker 00:
I'm having trouble with the fact that this case really illustrates that you needed to have it in this case, because he just would have said the stuff

[00:09:25] Speaker 00:
He's already said, and it wouldn't have changed the government's mind, and it doesn't seem like it would have changed the court's mind.

[00:09:30] Speaker 01:
I think it might have changed the government's mind.

[00:09:32] Speaker 01:
The briefings are dynamic.

[00:09:34] Speaker 01:
The prosecution can ask whatever it wants.

[00:09:36] Speaker 01:
That's the Montanez case from the first circuit where they talked about the real benefits of a debriefing and the dangers of just proceeding with a written proffer.

[00:09:43] Speaker 01:
And so you get everyone together in the room, the defense counsel, the defendant, the interpreter.

[00:09:49] Speaker 03:
It's also risks too.

[00:09:50] Speaker 03:
It could harden the government's position.

[00:09:52] Speaker 01:
what was the risk in this case?

[00:09:53] Speaker 01:
It's already a ten-year mandatory minimum.

[00:09:55] Speaker 01:
The government said no.

[00:09:56] Speaker 01:
The defense has filed nothing with respect to safety valve in the memorandum for sentencing.

[00:10:00] Speaker 00:
So the risk might be that you feel like

[00:10:03] Speaker 00:
that you get to go to the court and convince the court instead of convince the you know you you you said it got you're not gonna make any progress with the government and so you go to the court and see if you can convince the court it would be the idea you know we as as a defense counsel I the briefings not gonna help me with the government so I'm going to go to court and see if I can win over the judge correct so it seems that there's not it seems so that but if I really hard in the government they're going to they would oppose more I don't know it just doesn't seem

[00:10:32] Speaker 00:
I guess we're all struggling with maybe.

[00:10:34] Speaker 03:
But I said he came in and lied to my face.

[00:10:38] Speaker 03:
Carried quite a bit of weight.

[00:10:40] Speaker 01:
The Montaner's case raises an interesting point.

[00:10:43] Speaker 01:
They say, so the sentencing hearing, even more stuff came up during the sentencing.

[00:10:47] Speaker 01:
The government said, well, he's answered, he responded to these things, but there's these other things.

[00:10:51] Speaker 01:
And the DMV thing came up and other things came up.

[00:10:54] Speaker 01:
And so this was just, it was kind of the wild west of safety valve at sentencing because things just kept coming up that weren't even raised before.

[00:11:00] Speaker 01:
If you have a debriefing, it gives the government agent and prosecutor a chance to ask whatever they want.

[00:11:05] Speaker 01:
And it gives the defendant a chance to answer questions, give context.

[00:11:11] Speaker 01:
And when you meet someone in person, it's a lot different from just reading what they write about.

[00:11:15] Speaker 03:
Have your argument, counsel.

[00:11:16] Speaker 03:
Thank you.

[00:11:16] Speaker 03:
I know you're over time.

[00:11:17] Speaker 03:
Our questioning took you over time, but I'll put two minutes back for your rebuttal.

[00:11:20] Speaker 03:
Thank you very much.

[00:11:26] Speaker 02:
Good morning.

[00:11:26] Speaker 02:
May it please the court, Benjamin Hawley for the United States.

[00:11:29] Speaker 02:
The reason the district court denied the safety valve adjustment here was because of the content of the information provided, not the timing and not the format that it was provided.

[00:11:37] Speaker 02:
As the court has pointed out, essentially the same information that the defendant now says he would have provided was provided to the court, to the government at the sentencing hearing, and that didn't seem to make a difference.

[00:11:49] Speaker 02:
or rather did not make a difference.

[00:11:51] Speaker 04:
So one question I have for you is, it seems to me that the district court had the wrong standard in his mind when he was making this judgment.

[00:11:57] Speaker 04:
He thinks that it's the government's call about whether the person is truthful or not, and not the court's call.

[00:12:01] Speaker 04:
That's flatly contrary to the statute.

[00:12:04] Speaker 04:
So given that the district court is working with the wrong lens, how can we really know prejudice?

[00:12:11] Speaker 02:
So two responses to that.

[00:12:13] Speaker 02:
The first is that the court said, kind of independent of it, because the prosecutor pushed back on exactly that point, and the court said,

[00:12:18] Speaker 02:
And regardless, I have the same concerns that you do.

[00:12:21] Speaker 02:
So even if I'm looking at this on my own independently, I have the same concerns.

[00:12:25] Speaker 02:
So even applying the correct standard of the court making the decision, it would have come out the same.

[00:12:30] Speaker 02:
The second is that ultimately this court is reviewing not whether the court should have granted safety valves, but whether there's something different that defense counsel could have done or should have done to make that difference.

[00:12:41] Speaker 02:
And here there's nothing there because, again, the district court was saying,

[00:12:44] Speaker 02:
the information I'm receiving, I forget the timing, I'm not concerned about the timing on the merits is not sufficient, he's not telling the truth.

[00:12:51] Speaker 04:
They filled in some of the details at the sentencing hearing and again in the declaration, but those details didn't change the fundamental concern that the- Well there's one factual thing that I don't know what to make of and the district court again erroneously says when considering this issue that there had been a proffer, there had been an in-person debrief and so again I'm trying to think of like

[00:13:16] Speaker 04:
As a matter of common sense, it seems that the in-person interaction is probably the best way to go if you're trying to convince somebody that you're being truthful.

[00:13:23] Speaker 04:
I mean, you have the risks, right, if you're actually not being truthful.

[00:13:26] Speaker 04:
But we'll set that aside for a second.

[00:13:27] Speaker 04:
That's probably the best way to go.

[00:13:29] Speaker 04:
If the district court has in its mind when it's deciding this question that's happened and it actually hasn't happened, then I'm back to do we have a problem in terms of can we really know what the district court would have done had it properly understood what had happened?

[00:13:46] Speaker 02:
And we don't because first of all, so I point to pages 103 and 104 of the record.

[00:13:50] Speaker 02:
That's at the sentencing hearing where the court says, well, you know, I've reviewed all of these things, including I know there was an interview with the defendant.

[00:13:55] Speaker 02:
He uses the word interview as opposed to debrief or anything else.

[00:13:57] Speaker 00:
prosecutor on the next page immediately pushes back and says no your honor because of all these covid restrictions this was done by proffer and the court immediately accepts that correction oh i'm sorry i was mistaken you're you're right so made the mistake later right when it actually says if we assume for a second it's a mistake when the court used the word debrief it that was later right when the court was so what do we make of that i mean it does seem the court was corrected and on the record and understood but then it

[00:14:24] Speaker 00:
almost reverted back to its mistake.

[00:14:26] Speaker 00:
Do we use the earlier fact that the court seemed fine?

[00:14:31] Speaker 00:
I'm assuming it was just writing up and kind of

[00:14:34] Speaker 00:
confusing cases and I don't know, what do we make of that?

[00:14:37] Speaker 02:
So that would be correct if the court assumes that debrief only means an in-person debrief.

[00:14:43] Speaker 02:
Let's just assume that first.

[00:14:44] Speaker 02:
Okay, so assuming that then yes the court would be wrong and this is maybe 11 months later I think when we're considering the ineffective assistance collateral attack.

[00:14:52] Speaker 02:
There then my response would be assuming that he was wrong about that is it still didn't matter because it was the content of the information the court was concerned with.

[00:14:59] Speaker 02:
It wasn't

[00:15:00] Speaker 00:
the format, there was nothing in the analysis that turned on, well, if this was done in person or because this was done in person, therefore... And the idea is if the two of you would have been standing there right then and said, no, no, same thing as 11 months earlier, the court would have done the same thing it did 11, oh yeah, okay, that's right, I'll...

[00:15:15] Speaker 00:
cross it out and not say .

[00:15:16] Speaker 00:
.

[00:15:16] Speaker 00:
.

[00:15:16] Speaker 00:
Exactly.

[00:15:18] Speaker 02:
Obviously, the debriefs, the in-person debriefs are done without the court there.

[00:15:22] Speaker 02:
The judge is only going to hear about it secondhand regardless.

[00:15:25] Speaker 02:
The best shot the defendant would have had in that situation is, as you were discussing earlier, to persuade the government and then maybe bring the government along to persuade the court.

[00:15:35] Speaker 00:
What about the idea that it seems like defense counsel is really

[00:15:38] Speaker 00:
focused on sworn is that a debrief is just different.

[00:15:41] Speaker 00:
It does have some resonance, the idea that you get everybody in a room.

[00:15:46] Speaker 00:
It's why mediations sometimes work, sometimes they don't.

[00:15:49] Speaker 00:
What about that idea?

[00:15:50] Speaker 02:
At the end of the day, this is ultimately what the defendant is saying.

[00:15:54] Speaker 02:
Again, we have that declaration now, 11 months into the process after the sentencing, where he's not coming off the sword.

[00:16:00] Speaker 03:
He's providing a little- Right, but I think counsel's point is that an in-person debriefing

[00:16:06] Speaker 03:
is very dynamic, right?

[00:16:08] Speaker 03:
The government can probe, the government can question, the government can ask him as many questions as it wants to to be fully satisfied that he's given the complete answer.

[00:16:18] Speaker 03:
There are definitely risks with bringing your client in, but at the stage that the case was at,

[00:16:24] Speaker 03:
What choice did the defense really realistically have?

[00:16:27] Speaker 03:
That was his best shot.

[00:16:29] Speaker 03:
The government already thinks that you're lying.

[00:16:31] Speaker 03:
Bring your client in, let the government ask as many questions as it wants until it feels satisfied.

[00:16:38] Speaker 03:
That was his best shot.

[00:16:40] Speaker 03:
Now we don't have, given the statements, and even now we don't have

[00:16:46] Speaker 03:
maybe enough details that would have satisfied the government, but what I hear defense counsel saying is that that was the only thing that they could have done to really have changed the government's mind.

[00:16:57] Speaker 02:
Right.

[00:16:57] Speaker 02:
So I think the concern there is if this court holds it was ineffective assistance, either kind of generally or on these specific facts, to not do an in-person debriefing, that's getting very close to then having a bright line rule of you have to do an in-person debrief in essentially all of these cases, or at least when the government is initially pushing back.

[00:17:14] Speaker 02:
And the question isn't could counsel have done more.

[00:17:16] Speaker 02:
It's was it so far below the objective standard of reasonableness of what a defense counsel should be doing in this case.

[00:17:23] Speaker 02:
And because there are risks to doing that debrief, particularly if you have a client as certainly the government believes here was sticking with a story that just was not true.

[00:17:31] Speaker 02:
That's not a bad tactical decision to kind of keep him away from a experienced prosecutor who's functionally going to cross examine him during the debrief.

[00:17:39] Speaker 02:
and potentially come in with more information to the district court of saying, here are additional things he lied about, or here are additional concerns we have.

[00:17:46] Speaker 02:
I mean, it could be a Hail Mary shot in this case, but not taking that.

[00:17:49] Speaker 03:
What's the practice in San Diego for these debriefings?

[00:17:51] Speaker 03:
Are they usually in person for safety valve purposes?

[00:17:55] Speaker 02:
Outside the COVID context, a lot of them are, but there are plenty.

[00:17:59] Speaker 02:
I would defer to defense counsel on the percentage that he would have more experience with some of that, but I would say half or more are done by letter.

[00:18:06] Speaker 02:
If then there's pushback, then I think a lot of the times you do have, at the very least, a more conversation, potentially another letter, and then a lot of times then you do a sit down.

[00:18:14] Speaker 02:
But it is not every case that you have an in-person debrief, largely just because of the volume.

[00:18:18] Speaker 02:
And if someone's given a post-arrest statement that's lengthy and has a lot of information, we get a little bit more in a letter.

[00:18:23] Speaker 03:
It would be fairly unusual not to have an in-person debrief if the government is not going to agree to give sex to the valve.

[00:18:30] Speaker 02:
I would agree it would be probably unusual, but I would not agree that it then is ineffective assistance of counsel to avoid that or to not put your client in that situation.

[00:18:39] Speaker 02:
And again, here with the COVID restrictions, that doesn't make it impossible, but it certainly would have made things more difficult in terms of having that give and take.

[00:18:47] Speaker 04:
There's one other thing I want to ask you about that I'm concerned about with how the district court did this.

[00:18:51] Speaker 04:
I'm looking at his 2255 decision.

[00:18:55] Speaker 04:
And it seems to be that the district court thinks that because the defendant lied the first time, or what was perceived to be a lie at the first time, that there was no reason to give him a second, I think he even says, second bite of the apple.

[00:19:09] Speaker 04:
Again, I think that's flatly contrary to our law.

[00:19:11] Speaker 04:
that as long as the government can make an assessment that somebody is being truthful at any point before sentencing, even if their story has changed, if they've lied and they have to come in and say, I'm sorry and I'll give you the real story now.

[00:19:23] Speaker 04:
So what do we do with that in terms of the district court is saying, I didn't need to give any more continuances.

[00:19:29] Speaker 04:
I didn't need to give any more time for any more work to be done because it wouldn't have mattered anyways because he lied the first time and he doesn't get a chance to correct.

[00:19:35] Speaker 02:
So there I think the court is relying on the not later than the time of sentencing

[00:19:39] Speaker 02:
portion of the requirement and saying, you know, you gave this letter ahead of time and now I'm hearing it sentencing what the story is, I don't need to continue it to have you now kind of add more or maybe even change your story and come back for another sentencing.

[00:19:50] Speaker 02:
So I would agree it would be different if all of this had happened kind of before the sentencing hearing and then at the sentencing hearing the defendant says, okay, here's actually what happened.

[00:19:57] Speaker 04:
But didn't he say something similar at the sentencing hearing?

[00:20:01] Speaker 02:
The court did not continue it another time, but this is while they're talking about the merits of it and here's all this extra information that counsel is providing.

[00:20:10] Speaker 02:
The court is hearing it.

[00:20:11] Speaker 02:
Some judges would continue it and basically tell the defendant, kind of give them a stern speech of you really need to be truthful, let's try this again, but I don't think there's any requirement that the court

[00:20:20] Speaker 02:
Continue it to give the defendant you know another shot at providing yet more information or again from the government the course point of view Here we're not looking at whether the district court aired and not giving a continuance.

[00:20:31] Speaker 04:
We're looking at the attorney right the attorney's failures and

[00:20:33] Speaker 04:
and whether they are material, like whether they would have made a difference.

[00:20:37] Speaker 04:
So I'm still wrestling with, it really does seem like the defense attorney did not do what was needed here in terms of making sure that he made a full record for his client in terms of the safety valve.

[00:20:47] Speaker 04:
And so, and we've got the district court who's seeing things at least two ways incorrectly and trying to assess like, well, if he had actually done what needed to be done, would it have made a difference?

[00:20:57] Speaker 02:
And our answer to that is no, because the court repeatedly said, and the prosecutor for that matter too,

[00:21:03] Speaker 02:
The information is not credible.

[00:21:06] Speaker 02:
It wasn't the format.

[00:21:06] Speaker 02:
It wasn't the timing.

[00:21:07] Speaker 02:
It was this information that you were telling me is just not true, and therefore you don't qualify for safety valve.

[00:21:13] Speaker 02:
Defense counsel could and should have done more in the sense of it's generally not a good idea to make a federal judge angry and just collateral issues of timing and such.

[00:21:21] Speaker 02:
But the court expressly said that's not my concern.

[00:21:23] Speaker 02:
My concern is the content.

[00:21:24] Speaker 02:
That content's not true.

[00:21:26] Speaker 02:
Therefore, safety valve does not apply.

[00:21:29] Speaker 02:
Thank you.

[00:21:36] Speaker 01:
The typical way this works in San Diego, there's a lot of drug cases, back when they were charging them as mandatory minimums, you send a proffer letter to the government.

[00:21:46] Speaker 01:
Or they would usually say, send me a proffer letter, and I'll consider that for safety.

[00:21:49] Speaker 01:
You send the proffer letter to the government.

[00:21:51] Speaker 01:
And in a lot of cases, in some cases, that proffer letter is acceptable.

[00:21:57] Speaker 01:
I think in more cases, there's a response, hey, what about this?

[00:22:00] Speaker 01:
He didn't touch on this.

[00:22:01] Speaker 01:
You send a supplemental proffer.

[00:22:02] Speaker 01:
And in most cases, these cases are settled in terms of safety valve in writing between the prosecutor and the defense attorney with written communications.

[00:22:12] Speaker 01:
If that doesn't work, you have to have a debriefing.

[00:22:16] Speaker 01:
You have to have

[00:22:17] Speaker 01:
AD briefing for the reasons why your honors have discussed.

[00:22:21] Speaker 01:
The dynamics of the meeting where the government can look the person in the eye and the defendant can look the government agents in the eye and explain what happened.

[00:22:30] Speaker 01:
This wasn't like Mr. Cosrace who has had some crazy story in this case that he was trying to sell to the government.

[00:22:35] Speaker 01:
These were details about, you know, where he was at certain times and why he drove other vehicles.

[00:22:41] Speaker 04:
I mean, this was... I like how this works.

[00:22:44] Speaker 04:
Practically, even though the statute says that it's really the court that needs to make a decision about whether the person is being truthful, practically is that not true?

[00:22:51] Speaker 04:
Was the district court actually right as a practical matter because the district court is not in the meeting, doesn't hear the person's story, it's not like you have an evidentiary hearing, you stick the guy on the stand, you just hear from the government and you hear what the government's meeting was and whether they believed him or not and you probably just defer to that.

[00:23:06] Speaker 04:
Is that how it really goes?

[00:23:08] Speaker 01:
I disagree with that, Your Honor.

[00:23:10] Speaker 01:
In a case like this, for someone who's safety valve eligible and looking at a much shorter sentence than 10 years, if the government declines to recommend safety valve after proffers or after debriefing, you have to make your record.

[00:23:22] Speaker 01:
And you make your record by filing declarations, by requesting an evidentiary hearing before the court, and those happen.

[00:23:27] Speaker 01:
Evidentiary hearings ask that safety valve happen where the district court takes its obligations seriously to do an independent de novo review of the issue and

[00:23:36] Speaker 01:
And it gives all the evidence.

[00:23:37] Speaker 01:
And the defendant can testify as to what happened in the case and the government agent or whoever can testify and say why they think that's not credible or not true.

[00:23:47] Speaker 01:
And the development of the record is crucial.

[00:23:49] Speaker 01:
First step, try to do it by proper.

[00:23:51] Speaker 01:
Second step, try to do it by debriefing.

[00:23:54] Speaker 01:
And if that fails, you make your record for the district court to make its independent decision.

[00:23:59] Speaker 01:
None of that happened in this case.

[00:24:01] Speaker 03:
Thank you very much, counsel, for your very helpful arguments this morning.

[00:24:04] Speaker 03:
The matter is submitted.