[00:00:00] Speaker 02:
Next one.

[00:00:03] Speaker 05:
Good morning, Your Honors.

[00:00:04] Speaker 05:
Todd Burns on behalf of Mr. Perez.

[00:00:06] Speaker 02:
Good morning.

[00:00:07] Speaker 05:
My hope is to reserve three minutes for rebuttal.

[00:00:11] Speaker 05:
Sure.

[00:00:12] Speaker 05:
And I intend to focus on the first two issues raised in my briefs, dealing with the district court having induced a constitutionally invalid guilty plea and then later erroneously denying

[00:00:23] Speaker 05:
a motion to replace counsel so that the defendant could file a motion to withdraw his guilty plea.

[00:00:30] Speaker 04:
Both those issues- Mr. Burns, could I ask a favor, please?

[00:00:33] Speaker 04:
Because I'm remote, would you please get as close to the microphone as you can?

[00:00:37] Speaker 04:
Because when you back off, I'm not hearing you well.

[00:00:41] Speaker 05:
Sure, sorry.

[00:00:43] Speaker 05:
Both those issues are founded on Mr. Perez's complaints about his defense counsel.

[00:00:49] Speaker 05:
Chief amongst those was that Mr. Perez has asked defense counsel

[00:00:53] Speaker 05:
to get a forensic expert to examine a cell phone so that they could establish that the government had taken the bulk of its trial evidence from a cell phone for which it did not have a warrant for the search, and that therefore could support a suppression motion.

[00:01:11] Speaker 05:
When Mr. Prez raised these complaints, and that complaint in particular, defense counsel was there.

[00:01:16] Speaker 05:
He never denied that he'd failed to do that, and he never justified that failure.

[00:01:22] Speaker 05:
The district court throughout the proceedings also never inquired into that failure.

[00:01:28] Speaker 02:
Counsel, I think you're... Can I interrupt you because it feels like you're conflating or discussing both of these episodes at the same time.

[00:01:37] Speaker 05:
I do intend to do them seriatim after this.

[00:01:41] Speaker 05:
It's just those are the fundamental undeniable, undisputed facts.

[00:01:44] Speaker 01:
Okay.

[00:01:44] Speaker 01:
All right.

[00:01:45] Speaker 01:
And so when Mr... So can we drill down on... I mean, you mentioned the defense counsel didn't.

[00:01:51] Speaker 01:
sort of justify his decision in litigating the case.

[00:01:55] Speaker 01:
I mean, it seems to me he's got some, the defense counsel is in a very difficult position there in terms of attorney-client privilege and not wanting to disadvantage his client because what if his answer is, I've looked at that and it's baseless, right?

[00:02:07] Speaker 01:
Like he's not going to want to announce that in court.

[00:02:09] Speaker 01:
So I'm not quite sure what you, I mean, one thing you can infer from his silence is that there's no there there.

[00:02:17] Speaker 01:
So what do you want us to do with that?

[00:02:19] Speaker 05:
Well, under the circumstances, of course, the district court is required to handle this ex parte by having government counsel lead the courtroom.

[00:02:25] Speaker 02:
Are we talking about the first episode now?

[00:02:29] Speaker 02:
Because in the first episode, I don't hear him complaining about attorney-client privilege.

[00:02:33] Speaker 02:
I think the record shows he's complaining about his government's performance.

[00:02:37] Speaker 02:
So I'm really having trouble talking about these simultaneously.

[00:02:41] Speaker 05:
Okay.

[00:02:41] Speaker 05:
So turning to the first instance.

[00:02:43] Speaker 02:
Okay.

[00:02:43] Speaker 05:
Mr. Perez tries to address the issue and he specifically brings up the second phone issue.

[00:02:49] Speaker 05:
Now that issue he later is able to give more substance to post plea when the second event occurs.

[00:02:56] Speaker 05:
But he raises the second phone instance, the second phone issue.

[00:03:00] Speaker 05:
The district court cuts him off and says, look, we're too far down the road for this.

[00:03:05] Speaker 05:
I'm not going to hear this.

[00:03:06] Speaker 05:
You have two choices.

[00:03:07] Speaker 05:
You either plead guilty or you proceed with trial.

[00:03:11] Speaker 05:
And at that point, the district court effectively induces an involuntary constitution.

[00:03:16] Speaker 02:
But it gave him quite a bit of time, including an overnight opportunity to think about what he wanted to do and to confer with his lawyer.

[00:03:24] Speaker 05:
That's correct.

[00:03:25] Speaker 05:
But the district court did not inquire as a district court under Wynn and other cases.

[00:03:29] Speaker 02:
He would have to have inquired.

[00:03:30] Speaker 02:
Again, I think in this first episode, I don't hear your client requesting or alleging that there's a breakdown of communication or that he wants

[00:03:40] Speaker 05:
No, he's not alleging a breakdown of communication.

[00:03:43] Speaker 05:
He's alleging that his counsel has failed to investigate, failed to get an expert for the second phone issue.

[00:03:48] Speaker 05:
He just doesn't get there because the district court cuts him off and says, I'm not going to hear this.

[00:03:53] Speaker 05:
You have two choices.

[00:03:54] Speaker 05:
So he doesn't get to develop it.

[00:03:56] Speaker 05:
He does get to develop it later.

[00:03:58] Speaker 05:
When he again asks for new counsel, he says, I want to withdraw my guilty plea, and explains what it is that he was getting at.

[00:04:04] Speaker 05:
That's why I'm addressing all those facts at once, because he doesn't, in the first instance, get to explain himself.

[00:04:10] Speaker 02:
But we can't analyze it that way, I don't think.

[00:04:13] Speaker 02:
But correct me if you think I'm wrong.

[00:04:15] Speaker 02:
I think we have to look at what the district court knew at the time.

[00:04:19] Speaker 02:
For each of these rulings and it differed significantly.

[00:04:22] Speaker 05:
That's why I think it's important at the first episode He didn't say I want a new lawyer because there's a breakdown of communications or I can't talk to this guy or no He says that I want a new lawyer and he brings up that the new lawyer has not Investigated the second phone issue nor the fact that he was released so they could gather more ex evidence

[00:04:40] Speaker 05:
The district court then cuts him off, and he doesn't get to explain what he means by that.

[00:04:44] Speaker 05:
At that point, the district court is obligated to inquire to at least hear out Mr. Perez.

[00:04:48] Speaker 05:
It doesn't do either of those things.

[00:04:50] Speaker 05:
It cuts him off, says, no, you're either proceeding with trial, we got a jury here, or you're pleading guilty.

[00:04:55] Speaker 05:
And it doesn't matter that Mr. Perez gets overnight to think about it.

[00:04:59] Speaker 05:
The district court doesn't fulfill its obligation to inquire into the problem and potentially resolve it, as required by Wynn and McClendon.

[00:05:06] Speaker 01:
So I'm trying to figure out and just think through

[00:05:10] Speaker 01:
What needs to happen when the defendant is, I need a new lawyer because they're not litigating the case the way I want?

[00:05:19] Speaker 01:
Because I think the inquiry that the district court needs to engage in is different based on the defendant's assertion of what the problem is.

[00:05:25] Speaker 01:
If the problem is they won't meet with me, if the problem is they'll blow me off, if the problem is they're not taking the strategy that I want.

[00:05:34] Speaker 01:
I think those are different things.

[00:05:36] Speaker 01:
and perhaps trigger different obligations by the district court in terms of what that inquiry should look like.

[00:05:41] Speaker 01:
So when the allegation here is just this lawyer is not litigating this case how I want, or he's not running down different defenses or different theories that I want, what is the inquiry?

[00:05:53] Speaker 01:
I'm trying to figure out if the district court, and we'll stick with the first during trial scenario,

[00:06:00] Speaker 01:
If the district court had asked more questions, what is the district court going to learn?

[00:06:04] Speaker 01:
Because I've already pointed out, I'm not sure what the defense attorney can say there while also complying with his obligations to his still existing client.

[00:06:15] Speaker 01:
And the defendant is going to say, what?

[00:06:17] Speaker 01:
It's more of the same, right?

[00:06:18] Speaker 01:
Like, I don't like how this guy is defending me.

[00:06:21] Speaker 01:
So it's like, what more is the district court going to learn by asking another question there?

[00:06:25] Speaker 05:
But I think there are a number of questions wrapped up in what Your Honor just asked.

[00:06:29] Speaker 05:
I think in the first instance, the district court has to hear out Mr. Perez rather than cut him off.

[00:06:34] Speaker 05:
And then the district court, under this court's case law, is clearly obligated to inquire.

[00:06:39] Speaker 05:
And obviously, that inquiry is directed by what the complaint is.

[00:06:42] Speaker 05:
But the district court doesn't do that.

[00:06:43] Speaker 05:
The district court cuts off Mr. Perez.

[00:06:45] Speaker 01:
So the cutting off, I'm not quite sure I understand.

[00:06:47] Speaker 01:
Because I normally would, except for we have this sort of series of events where he asks for a new lawyer.

[00:06:54] Speaker 01:
And every single time, he says the same thing.

[00:06:57] Speaker 01:
So it's not like the district court missed something he wanted to say about the conflict he was having with his lawyer.

[00:07:03] Speaker 01:
And we can reasonably infer that, because every other time, both before and after, he's saying the same thing.

[00:07:09] Speaker 05:
But I would dispute that.

[00:07:13] Speaker 05:
The first time that this comes up when he's challenging this lawyer is on the first day of trial.

[00:07:19] Speaker 05:
And Mr. Perez starts addressing that there's the second time.

[00:07:22] Speaker 01:
I thought he brought it up even before a trial started.

[00:07:25] Speaker 01:
No.

[00:07:26] Speaker 01:
I mean, he did, but he actually got his substitution of counsel.

[00:07:31] Speaker 02:
OK.

[00:07:31] Speaker 02:
So the very first time he complained, that lawyer was replaced.

[00:07:36] Speaker 01:
Yes.

[00:07:36] Speaker 01:
And it was the same complaint.

[00:07:37] Speaker 02:
And I understood that the very first time he complained, he did raise, or perhaps the lawyer did raise the breakdown in communications.

[00:07:46] Speaker 02:
Second time around, he didn't.

[00:07:48] Speaker 02:
And to me, sort of following up on what Judge Forrest is asking, that seems to be important to me, that the judge is now looking at a second request.

[00:08:01] Speaker 02:
right, a second time where the judge had cautioned him, you know, just because you want the law to be one way, that's not what the lawyer is bound to, is bound to follow the existing law and do what the lawyers thinks best on the law.

[00:08:17] Speaker 02:
So it seems that he's voicing the same complaint, and the judge is saying, you know, I've already explained to you.

[00:08:26] Speaker 05:
During the first instance,

[00:08:28] Speaker 05:
Mr. Perez says, look, I don't want new counsel.

[00:08:30] Speaker 05:
I'm just raising this concern because I've raised issues with this lawyer.

[00:08:34] Speaker 02:
But he gets new counsel.

[00:08:35] Speaker 05:
That's true.

[00:08:36] Speaker 05:
But that wasn't his request.

[00:08:37] Speaker 05:
And the judge says, well, if you tell me it's a personality thing, I'll give you a new lawyer.

[00:08:40] Speaker 05:
So they both say, OK, it's a personality thing.

[00:08:42] Speaker 02:
And he says, don't try this again.

[00:08:43] Speaker 02:
It's not going to go well if you try it again.

[00:08:46] Speaker 05:
But it wasn't a personality thing.

[00:08:47] Speaker 05:
But regardless, we get to this instance right at the beginning of the trial where he says he's not investigating issues connected to the second phone.

[00:08:57] Speaker 05:
and that they released me on accident.

[00:08:58] Speaker 05:
He's addressing specific incidents, and he's cut off.

[00:09:01] Speaker 05:
In the transcript, it shows, I know this case dot, dot, dot.

[00:09:04] Speaker 05:
And the court says, let me give you a choice, because we're in trial now, which is way down the line.

[00:09:08] Speaker 05:
You have two choices.

[00:09:10] Speaker 02:
He also gives him overnight to think about it.

[00:09:12] Speaker 02:
And that, for me, is terribly important.

[00:09:15] Speaker 02:
I've read the transcript as well, but on this first episode, it seems to me that you've got a really steep hurdle, because he gives him time to think about it.

[00:09:23] Speaker 02:
The guy comes back the next morning, and he

[00:09:26] Speaker 02:
sticks with his decision to change his plea.

[00:09:29] Speaker 02:
He didn't say, you didn't hear me out, I've got this other problem.

[00:09:32] Speaker 04:
Well, the judge has made clear he's not going to hear them out.

[00:09:34] Speaker 04:
What I'm concerned about is, from your perspective, what did your client tell the court was to be gained with respect to the second gun?

[00:09:44] Speaker 04:
I thought the evidence showed that was denied that there was one, and if there was one, it wasn't clear what benefit it was.

[00:09:52] Speaker 04:
From your perspective, what did your client think he was going to gain

[00:09:55] Speaker 04:
by exploring this second gun.

[00:09:58] Speaker 04:
It's a second phone, Your Honor.

[00:10:03] Speaker 05:
And in a nutshell, the government obtained two phones from Mr. Perez.

[00:10:06] Speaker 05:
One it got a warrant to search, one it did not have a warrant to search.

[00:10:10] Speaker 05:
And what he's telling his lawyers, look, all this trial evidence they're using, they took from the phone for which they did not have a warrant.

[00:10:16] Speaker 05:
You need to get an expert

[00:10:17] Speaker 05:
that can connect those dots and to support a suppression motion.

[00:10:21] Speaker 05:
A perfectly reasonable request.

[00:10:22] Speaker 05:
And when he gets a chance to explain it to the court, he does.

[00:10:26] Speaker 05:
He explains that.

[00:10:27] Speaker 05:
And at that point, the judge is incumbent on the judge under this court's case law to inquire of defense counsel.

[00:10:32] Speaker 05:
It obviously creates some difficulties potentially with privilege, attorney-client communications.

[00:10:37] Speaker 05:
That's why the government counsel is made to go out of the room.

[00:10:40] Speaker 05:
This happens all the time.

[00:10:41] Speaker 05:
That's why the inquiry is made to the extent that there is some invasion of privilege or otherwise.

[00:10:46] Speaker 05:
The defendant effectively waives that by raising the issue.

[00:10:49] Speaker 05:
The judge can inquire into it.

[00:10:51] Speaker 05:
But the judge must do that.

[00:10:52] Speaker 05:
If a defendant is saying, my lawyer is not doing the most fundamental thing to represent me in the case.

[00:10:56] Speaker 02:
What's the most fundamental thing to represent me in the case?

[00:10:58] Speaker 02:
What are you referring to?

[00:10:59] Speaker 05:
Investigate.

[00:11:01] Speaker 05:
Get an expert.

[00:11:02] Speaker 05:
Foul suppression motion.

[00:11:04] Speaker 02:
Let me be candid.

[00:11:05] Speaker 02:
It seemed to me that in the first episode, you're asking us to view it with 2020 hindsight and incorporate what the judge learned at the second episode.

[00:11:15] Speaker 02:
And the second episode, I actually find much more problematic.

[00:11:19] Speaker 05:
The first episode, it's only fair to look at what happened in the second episode, because the first episode, if you look on 3ER 327, dot dot, the judge cuts him off and says, I'm not hearing it from right now.

[00:11:31] Speaker 05:
We got a jury.

[00:11:31] Speaker 05:
We're going ahead with the jury.

[00:11:33] Speaker 05:
I'm not doing this.

[00:11:34] Speaker 05:
Tell them I'm not going to hear it.

[00:11:36] Speaker 05:
When he gets a chance to explain,

[00:11:38] Speaker 05:
Then again, when he asked for a new counsel to withdraw his plea, he says, look, I've been talking about this second phone the whole time.

[00:11:44] Speaker 05:
And not only did the lawyer not investigate, get an expert on the second phone, he lied to me about it.

[00:11:50] Speaker 05:
And I've discovered he lied to me about it based on emails.

[00:11:51] Speaker 02:
That's what's much more problematic.

[00:11:53] Speaker 02:
That's what's much more problematic in my book.

[00:11:55] Speaker 02:
The second time around, the judge gave him, well, he gave the judge reason to believe that the problem was he thought his lawyer had been untruthful with him.

[00:12:04] Speaker 02:
And that's in a different galaxy, as far as I'm concerned.

[00:12:07] Speaker 05:
And Mr. Perez admittedly wouldn't have known that during the first instance because he found out about post trial.

[00:12:14] Speaker 05:
But what he did know is I told this guy this evidence does not come from the phone that they have a warrant for.

[00:12:19] Speaker 05:
He needs to get an expert.

[00:12:20] Speaker 05:
He's not getting an expert.

[00:12:21] Speaker 05:
Now, did that all come out during the first instance?

[00:12:23] Speaker 05:
No.

[00:12:24] Speaker 05:
But why didn't it come out?

[00:12:24] Speaker 05:
Because the judge said, look, I'm not hearing this.

[00:12:26] Speaker 05:
We're too far down the line.

[00:12:28] Speaker 05:
You're either pleading guilty or we're going ahead with the trial.

[00:12:30] Speaker 02:
Do you want to reserve some time?

[00:12:32] Speaker 05:
Yes, thank you.

[00:12:47] Speaker 03:
Good morning.

[00:12:48] Speaker 03:
May it please the court, Matthew O'Brien, on behalf of the United States.

[00:12:53] Speaker 03:
Your Honor, the inquiry was sufficient, the mid-trial inquiry was sufficient because the defendant's theory about the second phone had just been disproven by the case agent's testimony, which the district court had just heard.

[00:13:07] Speaker 03:
The case agent testified at length about where the digital evidence came from.

[00:13:12] Speaker 03:
He testified

[00:13:14] Speaker 03:
that it was seized when defendant was arrested at the border on February 25th, 2022, that the Fish and Wildlife Service then obtained search warrants for that first phone.

[00:13:24] Speaker 03:
The second search warrant was for evidence of firearms.

[00:13:28] Speaker 03:
That the agency's digital forensics lab then assigned a code C2208 to that one phone and that one phone only, that the agents then searched the phone, tagged the evidence in their software of the firearm images,

[00:13:44] Speaker 03:
That tagged evidence then went into forensic reports, each one of which was for C2208.

[00:13:50] Speaker 03:
And we submitted some of those trial exhibits in the SCR.

[00:13:54] Speaker 03:
Trial exhibits one and two for example.

[00:13:55] Speaker 01:
So what do we do with, I mean I read all that transcript too and I was trying to figure out sort of what is the record before the district court on this second phone and where the digital evidence came from.

[00:14:04] Speaker 01:
Because while our case law talks about the district court needing to conduct an inquiry when an issue like this is raised, we also say

[00:14:11] Speaker 01:
All the district court needs to have is a sufficient basis for their decision, and that can be from the whole record.

[00:14:16] Speaker 01:
So I went down that track that you're trying to get us on.

[00:14:19] Speaker 01:
What I don't think is there is a clear indication of the district court ever taking up the issue of, is it possible that the government's evidence is wrong?

[00:14:30] Speaker 01:
And there is some second phone out there where something came from.

[00:14:33] Speaker 01:
Maybe that seems far-fetched, but we have nothing in the record that I can find where the district court is looking at that and actually

[00:14:40] Speaker 01:
giving an answer to that.

[00:14:41] Speaker 01:
And whether the answer is you're completely off base, the government dotted all its i's and crossed all its t's and this is solid, we don't ever have anything from the district court looking at that.

[00:14:52] Speaker 01:
So what do we do there?

[00:14:54] Speaker 03:
That's correct, Your Honor.

[00:14:55] Speaker 03:
We're not disputing that the district court could have made a better record, as is often the case.

[00:15:00] Speaker 03:
But to get to Your Honors, kind of the first part of your question, on the one hand, there's absolutely no evidence supporting defendants

[00:15:07] Speaker 03:
Second gun theory, nothing.

[00:15:09] Speaker 02:
The defense counsel says- Do you mean second phone?

[00:15:12] Speaker 03:
Sorry.

[00:15:13] Speaker 02:
Can you stay closer to the microphone, please?

[00:15:16] Speaker 03:
I'm sorry about that.

[00:15:17] Speaker 02:
That's all right.

[00:15:18] Speaker 02:
Can you stay closer to the microphone, please?

[00:15:19] Speaker 03:
I apologize.

[00:15:20] Speaker 03:
Second phone.

[00:15:21] Speaker 03:
There's nothing.

[00:15:23] Speaker 03:
My colleague here points to nothing.

[00:15:24] Speaker 03:
He says presumably there's some evidence.

[00:15:26] Speaker 03:
Nobody's ever pointed to anything.

[00:15:27] Speaker 02:
Well, at this point, there wasn't.

[00:15:29] Speaker 02:
At this point, there wasn't.

[00:15:31] Speaker 03:
Correct.

[00:15:31] Speaker 03:
And there still isn't.

[00:15:32] Speaker 02:
Well, no, I don't agree.

[00:15:34] Speaker 02:
But we're talking about the first episode, right?

[00:15:36] Speaker 03:
Yes.

[00:15:37] Speaker 03:
So on the one hand, there's no evidence in support of the second phone theory.

[00:15:41] Speaker 03:
On the other hand, the case agent just testified for hours that all of the evidence came from that first phone.

[00:15:47] Speaker 02:
But when you get to the second episode, that doesn't matter.

[00:15:50] Speaker 02:
The problem with the second episode is that this defendant believed that his lawyer had been untruthful with him.

[00:15:56] Speaker 02:
That's a very different problem.

[00:15:58] Speaker 03:
It would be if there was anything to back it up.

[00:16:00] Speaker 02:
No, no, not if there's anything to back it up.

[00:16:02] Speaker 02:
He could be wrong about that.

[00:16:04] Speaker 02:
But his belief was that his lawyer had been untruthful with him.

[00:16:08] Speaker 02:
And that's a very serious problem when we're talking about a breakdown in communications.

[00:16:12] Speaker 03:
I agree, Your Honor, but when you look at the... He doesn't have to be right.

[00:16:15] Speaker 02:
Why do you think he has to be correct in his belief that his lawyer had been untruthful with him?

[00:16:20] Speaker 03:
Your honor, I misspoke.

[00:16:21] Speaker 03:
I apologize.

[00:16:21] Speaker 03:
I don't want to go down that rabbit hole there.

[00:16:25] Speaker 03:
When you look at the inquiry, the post-trial inquiry, which was because there was no jury waiting outside, the district court gave the defendant more time.

[00:16:35] Speaker 03:
It's an ER 408 to 411.

[00:16:39] Speaker 03:
And there, the defendant said that his lawyer, this is a second court-appointed lawyer, told me there's no evidence from the other phone.

[00:16:50] Speaker 03:
All of the evidence in the case, that's true.

[00:16:53] Speaker 03:
That there was no evidence from the second phone.

[00:16:55] Speaker 03:
So there's this dispute based solely on- I mean, did the agent testify?

[00:16:59] Speaker 01:
This is what I don't remember from looking at that testimony.

[00:17:02] Speaker 01:
Did the agent testify there were two phones, we only pursued this one, and here's all the reasons why we didn't pursue that one?

[00:17:09] Speaker 01:
Was it that explicit?

[00:17:12] Speaker 03:
I don't think the second phone was ever referenced in trial.

[00:17:17] Speaker 01:
So that's the point.

[00:17:18] Speaker 01:
That's the point.

[00:17:19] Speaker 01:
The defendant's concern about his lawyer not representing him properly has never been addressed by the court.

[00:17:26] Speaker 01:
So we come back to this statement of law that we have of it's fine to not conduct a detailed inquiry if there's sufficient information to resolve the motion that's being made.

[00:17:37] Speaker 01:
And how can we say that when the district court is never actually

[00:17:42] Speaker 01:
taking up the second phone issue at all, right?

[00:17:46] Speaker 03:
Because I agree with Your Honor on the standard.

[00:17:49] Speaker 03:
The district court must have had sufficient information to make an informed decision.

[00:17:54] Speaker 01:
And the district court, as far as we can tell, has no information about the possibility of a second phone and doesn't ask a question about why that is.

[00:18:02] Speaker 03:
I disagree, Your Honor, because the case agent at trial testified that 100%

[00:18:09] Speaker 03:
of the government's digital evidence came from the first phone.

[00:18:13] Speaker 02:
But at the second episode, after he had entered his plea, he had received discovery from that parallel trial, from the other trial, indicating that his lawyer had been in communication with the government's counsel about a second phone.

[00:18:29] Speaker 02:
That's why he thought his lawyer had not been truthful with him.

[00:18:33] Speaker 02:
So what about that?

[00:18:35] Speaker 02:
I think your position seems to be trying to convince us that in this trial, in what I'll call the gun trial as opposed to the reptile trial, in the gun trial, the government's evidence all came from one phone and I'm not pushing back on that premise.

[00:18:50] Speaker 02:
But the problem is he was convinced that there was some evidence seized from a second phone that hadn't been subject to a warrant, apparently.

[00:18:58] Speaker 02:
That's what his belief was.

[00:19:00] Speaker 02:
And his lawyer told him there was no phone.

[00:19:04] Speaker 02:
There was no second phone.

[00:19:05] Speaker 03:
Well, there was a second phone.

[00:19:07] Speaker 03:
It was just never searched.

[00:19:09] Speaker 03:
I don't think there's any excuse.

[00:19:10] Speaker 02:
But whatever.

[00:19:10] Speaker 02:
But the problem is he's saying, again, I think whether he's correct or not doesn't matter.

[00:19:15] Speaker 02:
But he's explaining that his lawyer had told him about the second phone.

[00:19:18] Speaker 02:
His lawyer told him that the government didn't have a phone.

[00:19:21] Speaker 02:
There was no second phone.

[00:19:23] Speaker 02:
And then he gets discovery telling him that his lawyer had been in communication with the government about a second phone.

[00:19:29] Speaker 02:
So now he thinks his lawyer lied to him.

[00:19:32] Speaker 02:
Whether the lie, and that's my word,

[00:19:35] Speaker 02:
mattered whether or not in terms of creating a legal defense.

[00:19:40] Speaker 02:
The problem is he's believed his lawyer has been untruthful with him.

[00:19:44] Speaker 02:
At least that's my read of the record.

[00:19:47] Speaker 02:
And that's a problem that I don't think the court inquired about.

[00:19:53] Speaker 03:
Your Honor, I think we disagree whether the inquiry was sufficient.

[00:19:55] Speaker 03:
But I'd like to point out, even if your Honor's concerns are correct, then the remedy here would be

[00:20:04] Speaker 03:
We disagree with it.

[00:20:06] Speaker 03:
If the court doesn't want to affirm, the remedy would be to remand to the district court for further fact finding about whether, about the nature to the extent of the alleged conflict.

[00:20:19] Speaker 01:
Right, to conduct the inquiry that didn't happen.

[00:20:21] Speaker 01:
Right.

[00:20:22] Speaker 03:
And then if the district court finds that the alleged conflict didn't actually prevent an adequate defense,

[00:20:33] Speaker 03:
then the district court could just re-sentence defendant.

[00:20:36] Speaker 03:
There's no need for a new trial.

[00:20:39] Speaker 02:
I didn't say anything about a new trial.

[00:20:41] Speaker 03:
And Your Honor, I just want to point out a case we did not cite in our briefs, but on the remand for fact-finding issue, United States versus MUSA, M-U-S-A.

[00:20:54] Speaker 03:
And that's a 220, F3, 1096 from this court.

[00:20:58] Speaker 03:
It's a slightly different context in the revocation of supervised release context.

[00:21:03] Speaker 03:
The remedy clearly is just to remand to the district court for further fact-finding.

[00:21:08] Speaker 02:
On the breakdown?

[00:21:10] Speaker 03:
If there's a conflict and if the conflict actually prevented an adequate defense.

[00:21:18] Speaker 02:
Right.

[00:21:18] Speaker 02:
Did you want to reserve the rest or address any of the other issues?

[00:21:23] Speaker 03:
Yes, Your Honor, I'd like to address Council's arguments about Hernandez and the requirements for the inquiry.

[00:21:30] Speaker 03:
Council criticized in the reply brief our framing of the issue as a substitution of Council analytical framework.

[00:21:42] Speaker 03:
And I'd like to point out why we framed our answering brief that way, and I'm quoting from page 17 of the opening brief.

[00:21:50] Speaker 03:
Quote, indeed, appointing new counsel was the only way the court could remedy such a situation.

[00:21:55] Speaker 03:
Accordingly, it is appropriate to consider Perez's interrupted complaint as a request for new counsel.

[00:22:02] Speaker 03:
That's the opening brief.

[00:22:03] Speaker 03:
So that's what we did in our answering brief.

[00:22:05] Speaker 03:
And I'd just like to point out the court why Hernandez does not control here.

[00:22:10] Speaker 03:
Hernandez was a Ferreta case.

[00:22:13] Speaker 03:
The defendant in Hernandez three weeks before trial, not during trial, asked to proceed pro se.

[00:22:19] Speaker 03:
This court

[00:22:20] Speaker 03:
then in its Hernandez opinion went through the three-part for an inquiry that district court has to tell the defendant the nature of the charges the potential penalties and the pitfalls of self-representation.

[00:22:33] Speaker 02:
May I interrupt?

[00:22:35] Speaker 02:
Forgive me for interrupting.

[00:22:37] Speaker 02:
I really didn't understand why we were talking about Hernandez in the first instance, much less whether Hernandez has been impliedly overruled, because it's a ferreticase.

[00:22:46] Speaker 02:
So I'm not sure why we're here.

[00:22:48] Speaker 03:
Okay.

[00:22:48] Speaker 03:
Your Honor, I just wanted to make sure that I raised that point, because the briefing was kind of the parties were speaking past each other.

[00:22:56] Speaker 02:
Yes.

[00:22:56] Speaker 02:
Okay.

[00:22:57] Speaker 02:
Anything else?

[00:23:00] Speaker 03:
Not unless the court has any further questions.

[00:23:02] Speaker 02:
Not from Judge Forrest, and it looks like not from Judge Smith.

[00:23:05] Speaker 02:
Thank you for your argument, counsel.

[00:23:07] Speaker 03:
Thank you, your honor.

[00:23:14] Speaker 05:
I guess I would be a fool if I didn't start by explaining why I think Hernandez applies.

[00:23:18] Speaker 02:
Well, I wouldn't say that you're a fool, but I'm curious about what your answer is going to be.

[00:23:22] Speaker 05:
I think the fundamental point there is if a court's going to take a guilty plea, part of it of the Rule 11 colloquy, which is constitutionally required by Supreme Court case law, is to ensure that the defendant is told

[00:23:32] Speaker 05:
Look, you have a right to counsel, you have this right, you have that right, you have to ensure the defendant knows they have those rights, and they'll be respected.

[00:23:38] Speaker 05:
Otherwise, the plea is not voluntary.

[00:23:40] Speaker 05:
If you are taking, if you are forcing a plea under these circumstances where the defendant is saying, my attorney is not doing his job, and there's this big issue, and you're saying, look, I won't hear it, you either go ahead with the attorney who your claim is not doing a good job, or you plead guilty.

[00:23:52] Speaker 05:
When you take that guilty plea, you're not getting a voluntary plea.

[00:23:54] Speaker 05:
because the person is saying, you're telling me you have this right to counsel and whatever, but I'm telling you, I just told you, counsel's not doing anything.

[00:24:01] Speaker 05:
So that just cannot produce a valid guilty plea.

[00:24:04] Speaker 05:
The district court had to inquire to clear that up.

[00:24:07] Speaker 05:
Otherwise, it's in inducing an invalid plea.

[00:24:09] Speaker 05:
And that obviates the plea.

[00:24:11] Speaker 05:
Now, coming back to the evidence of the second phone.

[00:24:15] Speaker 05:
Mr. Perez was in a good position to know where the evidence was coming from.

[00:24:20] Speaker 05:
I mean, probably a better position really than anybody as far as fundamental knowledge.

[00:24:25] Speaker 05:
He told his counsel that.

[00:24:26] Speaker 05:
Now, if Mr. Perez gets up and testifies during trial, oh, you know, this evidence came from... But it doesn't matter if he's right or not.

[00:24:33] Speaker 02:
It just doesn't matter at this point when we're talking about a pre-sentencing.

[00:24:37] Speaker 05:
Well, I think it matters as far as suppressing the evidence.

[00:24:41] Speaker 02:
He thought that it was important.

[00:24:42] Speaker 02:
And he thought his lawyer had been untrueful with him.

[00:24:44] Speaker 05:
Well, I agree with that as a second layer.

[00:24:46] Speaker 05:
But as a first layer, when you tell your lawyer something like this, the lawyer, it's incumbent upon them to go get an expert.

[00:24:53] Speaker 05:
The government got three experts, including a phone expert.

[00:24:55] Speaker 05:
This defense lawyer couldn't get one expert to run down this lead.

[00:24:58] Speaker 05:
You don't have a choice at that point as a defense lawyer.

[00:25:00] Speaker 05:
I've tried about 50 cases.

[00:25:02] Speaker 05:
My client tells me something like this.

[00:25:04] Speaker 05:
I don't question it.

[00:25:05] Speaker 05:
I don't blow it off.

[00:25:06] Speaker 05:
I don't ignore it.

[00:25:07] Speaker 05:
I run it down.

[00:25:08] Speaker 05:
He had to do that.

[00:25:09] Speaker 05:
Imagine having this lawyer that you're appointed, and you tell him something like this, and he ignores you.

[00:25:14] Speaker 05:
Now, do we know that he exactly ignored him?

[00:25:16] Speaker 05:
Do we know exactly what happened?

[00:25:17] Speaker 05:
No, we don't.

[00:25:18] Speaker 05:
But that's because the district court failed to inquire, which was incumbent upon the district court under this court's case law.

[00:25:23] Speaker 05:
If there are no more questions.

[00:25:25] Speaker 02:
Judge Smith, any questions?

[00:25:27] Speaker 04:
No questions.

[00:25:28] Speaker 02:
I think that's it for us.

[00:25:30] Speaker 02:
Thank you both for your advocacy.

[00:25:32] Speaker 02:
We appreciate it very much.

[00:25:34] Speaker 02:
We'll take that case under advisement.