[00:00:00] Speaker 03: The first case we'll have is U.S. [00:00:01] Speaker 03: versus Eckstein, or Eckstein, and it's 24-31-38, and we'll hear from the appellant. [00:00:09] Speaker 01: Good morning, Your Honors. [00:00:10] Speaker 01: May it please the court, Justin Allman for the appellant, Michael Eckstein. [00:00:14] Speaker 01: I'm going to aim to reserve two minutes of my time for rebuttal. [00:00:18] Speaker 01: Rule 11 draws a bright line rule absolutely prohibiting all forms of judicial participation in the plea negotiation process. [00:00:29] Speaker 01: It doesn't matter whether the participation was minor, unintentional, or even well-intentioned. [00:00:35] Speaker 01: The rule admits of no exceptions, and the rule was violated in this case. [00:00:41] Speaker 01: Now, the government and defense don't agree on a whole lot, but one thing we do agree on is that the court needs to review this in the context of the entire record. [00:00:50] Speaker 01: The record in this case shows that Mr. Exdeen's retained counsel, Carl Cornwall, called to advise the court that his client wished to enter a change of plea. [00:01:01] Speaker 01: The record reflects that two days after placing that call to the court, counsel called his client to explain to him the deal that he had already committed the court that he wished to accept. [00:01:14] Speaker 01: Mr. Exdeen didn't have a copy of the plea agreement. [00:01:18] Speaker 01: He didn't understand it. [00:01:20] Speaker 01: The connection on the call was not good and Mr. Eckstein told his attorney that he did not want to proceed with the plea that he wanted more time. [00:01:28] Speaker 01: At that point, Mr. Cornwall became angry and that anger billowed over to the change of plea hearing. [00:01:35] Speaker 00: Counsel, can I interject for a minute? [00:01:39] Speaker 00: I have a lingering question that I hope you could address concerning Mr. Cornwall's request to withdraw. [00:01:47] Speaker 00: And it seems that right at the top of the change of plea, he indicated that he wanted the court to entertain his motion to withdraw. [00:01:58] Speaker 00: Doesn't seem that the court ever resolved that, that the change of plea hearing proceeded. [00:02:04] Speaker 00: And I wanted to ask you how we should be thinking about the fact that counsel sought to withdraw, that that was before the court, but never, as far as I can tell, meaningfully resolved. [00:02:18] Speaker 01: Sure, Your Honor. [00:02:19] Speaker 01: I think the issue in this case is the plea agreement and the decision about whether, you know, the decision on whether to go forward with the change of plea and the decision whether to have a substitution of counsel were really intertwined on this record. [00:02:32] Speaker 01: Mr. Cornwall starts out by saying, making clear that he doesn't have any interest in representing Mr. Eckstein unless Mr. Eckstein is going to plead guilty. [00:02:41] Speaker 01: And so his representation is contingent on that. [00:02:45] Speaker 01: The court goes through this discussion nominally about whether or not he's going to, whether Mr. Eckstein wants to replace counsel, but intertwined with all of that is the condition that Mr. Cornwall put on his representation, whether Mr. Eckstein wished to accept this plea. [00:03:03] Speaker 01: And so once the court makes these comments that says, [00:03:07] Speaker 01: advises Mr. Eckstein that it has a personal concern that if he does not go forward with Mr. Cornwall as his counsel, that the government may withdraw this plea offer. [00:03:18] Speaker 01: It's at that point that Mr. Eckstein says, I want to go forward with this plea. [00:03:23] Speaker 01: You're right, Judge. [00:03:24] Speaker 01: I don't want to lose this plea. [00:03:26] Speaker 01: And it's at that point that Mr. Cornwall says, I'm ready to go, Judge. [00:03:29] Speaker 01: And so I think at that point, the issue is in many ways mooted or withdrawn based on Mr. Cornwall's statement that [00:03:37] Speaker 01: I'm ready to go, Judge. [00:03:39] Speaker 00: Does it have any effect on how we should be thinking about coercion? [00:03:44] Speaker 01: I certainly think so, Your Honor, because in this case, the attorney throughout this proceeding is threatening his client openly, saying, I don't want to represent this man unless he's willing to accept this plea deal that I've negotiated for him. [00:03:59] Speaker 01: And there's nothing in the record where the judge tells defense counsel, that's your client's decision. [00:04:05] Speaker 01: That's a decision for him to make. [00:04:07] Speaker 01: And instead, the court's making comments to the defendant telling him, this attorney is very experienced, very skilled. [00:04:14] Speaker 01: In my experience, he cares very deeply about his clients. [00:04:17] Speaker 01: The court tells the defendant that if he does not go forward with Mr. Cornwallis' counsel, that [00:04:25] Speaker 01: that Mr. Eckstein may not qualify for appointed counsel and so may have to represent himself or go hire another attorney. [00:04:32] Speaker 01: And so Mr. Cornwall's threat is hovering over all of this proceeding. [00:04:40] Speaker 01: The conditional representation that he's only willing to provide if Mr. Eckstein will plead guilty is embedded in the background of this entire case. [00:04:50] Speaker 04: Well, Mr. Wallerman, [00:04:52] Speaker 04: given the emphasis you put on maybe suggested coercion from the lawyer rather than the court, let me give you a perspective that is at least arguable and tell me why it's wrong. [00:05:13] Speaker 04: And as you begin with rule 11, and it says the court must not [00:05:21] Speaker 04: participate in these discussions, meaning discussions to reach a plea agreement. [00:05:27] Speaker 04: And then as we get into the hearing, the court sees that she has to address this representation issue because this guy is saying I want to withdraw. [00:05:43] Speaker 04: And so they close the courtroom and they have this proceeding to protect [00:05:50] Speaker 04: privilege communications or just to protect the defendant. [00:05:55] Speaker 04: And a perspective is the thrust of this whole thing was the court quite appropriately addressing the representation issue. [00:06:07] Speaker 04: And she did so throughout. [00:06:09] Speaker 04: There's just a couple of lines. [00:06:16] Speaker 04: in the transcript that she says in connection with the representation issue that this government doesn't have to stick with this plea if it's delayed. [00:06:33] Speaker 04: And she says that twice, but the overwhelming thrust of the transcript indicates this is an issue about [00:06:45] Speaker 04: representation, not the court interfering in the plea discussions. [00:06:54] Speaker 04: Why is that a wrong perspective? [00:06:56] Speaker 01: Sure you are. [00:06:57] Speaker 01: So two points on that. [00:06:58] Speaker 01: I think principally where the judge really crosses the line here is when the judge says, [00:07:04] Speaker 01: I'm at a loss for what to do here. [00:07:06] Speaker 01: My concern, expressing it as a personal concern of the court, is that if you don't, if you go forward with seeking substitute counsel, the government may withdraw this plea and not re-extend it to you. [00:07:17] Speaker 01: So how do you want to proceed right now? [00:07:19] Speaker 01: And so the judge is actively linking this decision about what do you want to do with your counsel [00:07:24] Speaker 01: to the ongoing plea negotiations. [00:07:27] Speaker 01: There's no record in this case that the government had ever communicated any sort of timeline or deadline on its plea offer. [00:07:34] Speaker 01: The court, though, expressed it as a personal concern. [00:07:39] Speaker 01: The other thing I would note is going back to Canovarella, this court's main case, the kind of factual circumstances there were the same as far as what was leading up to the hearing. [00:07:49] Speaker 01: In that case, the defendant had communicated that he wanted to accept a plea agreement. [00:07:55] Speaker 01: Right before that, he changed his mind and said, you know what? [00:07:58] Speaker 01: I want a new attorney. [00:07:59] Speaker 01: I don't trust this attorney. [00:08:00] Speaker 01: I want somebody new. [00:08:01] Speaker 01: And so the court held a status conference and the status conference was mainly focused on whether or not they were going to replace counsel. [00:08:08] Speaker 01: And during the course of that, the parties got into plea negotiations. [00:08:11] Speaker 01: The comments in that case, I acknowledge, are different than what we're dealing with here. [00:08:14] Speaker 01: But these issues were intertwined there just as they are here. [00:08:18] Speaker 01: And in that case, the court recessed the proceeding for a few days after making these comments, allowed the defendant to go and decide whether he wanted to get new counsel or whether he wanted to continue with his counsel and take this plea or go to trial. [00:08:30] Speaker 01: And eventually, the defendant came back and entered a plea, and the court in that case reversed. [00:08:36] Speaker 01: I think just because we're talking about two things here, counsel and the plea, they're very clearly intertwined on this record and the court's comments, they're not just intertwined by Mr. Cornwall, they're intertwined by the court in this comment as far as tying the decision about counsel to the potential impact of ongoing plea negotiations. [00:09:00] Speaker 04: So you're viewing it as a coercion by the court rather than the court participating in the plea negotiations. [00:09:10] Speaker 01: The rule is not limited to judicial attempts to outright coerce or threaten a defendant. [00:09:18] Speaker 01: The rule broadly prohibits any judicial participation in plea negotiations full stop, whether the judge had only the best interest in mind or whether it was completely inadvertent or unintentional. [00:09:33] Speaker 01: And so I'm not saying that the judge had some secret motive to try and coerce the defendant. [00:09:38] Speaker 01: The rule is not so limited. [00:09:40] Speaker 01: It just bars participation. [00:09:42] Speaker 00: Does your, do the circumstances of councils wanting to withdraw affect the B1D issue as well? [00:09:53] Speaker 01: I think so, Your Honor, in this case. [00:09:57] Speaker 01: On that issue, we have agreement that there was error and that it was plain. [00:10:01] Speaker 01: And so the only issue is whether there's a reasonable probability that Mr. Eckstein would have not accepted this plea had the court advised him that he had a right to appointed counsel if he could not afford counsel. [00:10:15] Speaker 01: And on this record, it's clear that this relationship is toxic. [00:10:22] Speaker 01: that they do not get along, that there is not trust, and he is very reticent to accept this plea. [00:10:29] Speaker 01: And again, at the Third Plain-Error Prong, our burden is just to show a reasonable probability. [00:10:34] Speaker 01: It's less than a preponderance. [00:10:36] Speaker 01: It's just a probability sufficient to undermine the policy. [00:10:38] Speaker 00: Well, what are we looking specifically for? [00:10:41] Speaker 00: That without the [00:10:45] Speaker 00: That had he known he was eligible or could go through the eligibility determination for appointment of counsel that he would not have taken the plea. [00:10:55] Speaker 01: Yes, I think that's the issue. [00:10:57] Speaker 01: And I think the evidence here for that is just his reluctance throughout the whole first half of this proceeding to go forward with this agreement. [00:11:05] Speaker 01: And then layered over that, all of the issues with this relationship, it's clear from the record that this was not a good relationship. [00:11:15] Speaker 01: Defense counsel recognized on the record that the attorney client relationship had completely broken down. [00:11:20] Speaker 00: Well, at one point, your client does say, [00:11:24] Speaker 00: He says, you know, I mean, it's not even him. [00:11:26] Speaker 00: I mean, he sort of distances himself or his decision-making from whatever conflict he may have had with his attorney. [00:11:36] Speaker 00: How should we be thinking about that? [00:11:38] Speaker 01: So, Your Honor, I think part of that is that that comment comes after the judge has participated in the plea negotiations, after the judge has made these comments. [00:11:46] Speaker 00: So we have to find, we have to agree with you on the C1 error then in order for the, [00:11:54] Speaker 00: I didn't think those issues were linked. [00:11:58] Speaker 01: Your honor, I think they are related. [00:12:00] Speaker 01: I don't know that you have to rely on it. [00:12:01] Speaker 01: I do think it's a circumstance to consider in this case is these comments, whether they rise to the level of participation in the court's mind or not. [00:12:08] Speaker 01: It's very clear that the court's comments were a motivating factor that changed this defendant's mind and. [00:12:15] Speaker 01: this court, other courts have recognized that any participation by the judge in plea negotiations, no matter how minor, exerts pressure. [00:12:23] Speaker 01: And I think you see it in this transcript from those comments. [00:12:26] Speaker 01: But even more broadly, just going back, even without those comments, we still have a very clear record of an entirely broken down relationship that is distrustful. [00:12:39] Speaker 01: Those comments do come later, but I mean, I think [00:12:43] Speaker 01: Those comments also followed after the court expressed doubt about whether this client would qualify for appointed counsel. [00:12:54] Speaker 03: Well, go ahead and finish your answer. [00:12:56] Speaker 01: These comments came after the court expressed some doubt or reservation about whether Mr. Eckstein would qualify for appointed counsel, which I think this court needs to also take into account. [00:13:05] Speaker 03: OK, I just want to go back to the 11C1 and I just really have one question and try to [00:13:11] Speaker 03: that you have your rebuttal time that you wanted. [00:13:14] Speaker 03: William Judge Teeter had said, you know, the government, you know, that offer may not be here, but the government, I have no reason to believe that the government is gonna withdraw that offer. [00:13:26] Speaker 03: I'm just telling you, you know, that is always a possibility. [00:13:30] Speaker 03: It may be a possibility of 0.1 here. [00:13:34] Speaker 03: And she did say, [00:13:37] Speaker 03: I don't know whether this is a good plea deal for you or not. [00:13:44] Speaker 03: Uh, you know, what if in, in, in, I think Judge, uh, uh, Rossman mentioned or somebody mentioned that it's, that she reiterated that twice. [00:13:52] Speaker 03: What does you mention that four times? [00:13:55] Speaker 03: It would, would it's if, and I know you, you, you argue that it doesn't have to be, uh, uh, uh, uh, satisfied plain air, but if we reject that and if we do apply the plain air standard, would it be an obvious error and a prong to if Judge Teeter had [00:14:12] Speaker 03: You know, reiterated, I have no idea. [00:14:14] Speaker 03: You know, they've never said that they're going to withdraw the offer. [00:14:19] Speaker 03: It may continue to be available three months from now. [00:14:23] Speaker 03: I just tell you, I don't know any of these things. [00:14:27] Speaker 03: Is that an obvious participation in the plea negotiation? [00:14:32] Speaker 01: Your honor, I don't have a case that would say that that would be obvious. [00:14:36] Speaker 01: I think that the rule itself, though, is very broadly written as far as any participation. [00:14:42] Speaker 01: And this court can recognize a plain error just based on the text of the rule itself. [00:14:47] Speaker 01: In that case, the judge is discussing potential threats or potential leverage that the government could exert in plea negotiations, which I do think falls within the rule. [00:14:57] Speaker 01: That would clearly be a lot [00:15:01] Speaker 01: Better thing to have said than what we said on this record with the court expressed it as a personal concern of the judge. [00:15:07] Speaker 03: Okay, just Ross winter. [00:15:09] Speaker 03: Judge Murphy. [00:15:10] Speaker 03: Did you you're out of time? [00:15:12] Speaker 03: Do you all have any additional questions? [00:15:16] Speaker 03: Okay, there's where if you're on mute, by the way, but I think you should know. [00:15:20] Speaker 03: So we'll hear from Mr. Mag. [00:15:24] Speaker 02: Good morning, Your Honors, and may it please the Court, Jared Magg, on behalf of the United States. [00:15:29] Speaker 02: Judge Bacharach, I think I'd like to start kind of where you left off because, again, Cano Varela specifically states that Rule 11 doesn't establish a series of traps for imperfectly articulated oral remarks by the Court. [00:15:45] Speaker 02: And you know, as Mr. Lalman said, and we agree, you cannot look at those remarks in isolation. [00:15:52] Speaker 02: You have to look at exactly what Judge Teeter's concerns were here. [00:15:56] Speaker 02: And as much as the defendant insists that this case [00:16:03] Speaker 02: is about the plea agreement itself. [00:16:07] Speaker 02: Our position is that it's not, again, telling the defendant that the government is not under an obligation to continue the plea. [00:16:16] Speaker 02: merely informed him that if he insisted on getting new counsel, that he should be informed, that he will not possibly be placed back in the exact same position that he is today. [00:16:30] Speaker 02: And the government's position is that kind of statement ensures the defendant is making his decision about counsel with eyes wide open. [00:16:41] Speaker 02: So you have to look at exactly what the statement was designed to do. [00:16:45] Speaker 00: Is it the government's view that Judge Teeter ruled on the motion to withdraw or that it became moot? [00:16:54] Speaker 00: Or what is the government's position on Mr. Cornwell's motion to withdraw? [00:16:59] Speaker 02: Thank you, Judge Rosman. [00:17:00] Speaker 02: Our position is consistent with Mr. Lalman's position on that, that once the decision was made that Mr. Eckstein was willing to move forward with the plea, Mr. Cornwell's representation sort of followed right along with that. [00:17:14] Speaker 02: and that it was exhausted based upon that decision alone. [00:17:18] Speaker 02: There certainly isn't anything in the record to suggest that Judge Teeter ruled definitively on his motion of withdrawal. [00:17:25] Speaker 02: We're not standing here saying that she did, but we do agree with Mr. Lalman that it was sort of hand in glove when Mr. Exteem decided to enter his guilty plea. [00:17:35] Speaker 00: Maybe you could help me with something I'm struggling with on the B1D issue. [00:17:39] Speaker 00: The government agrees that there was a plain error there because of the failure to explain the entitlement to appointment. [00:17:50] Speaker 00: But on the third prong, it seems to me that we have circumstances where it's not just that Mr. Eckstein got this information early on at the arraignment, which our cases say is probably enough [00:18:06] Speaker 00: But that there was misinformation at this particular ex parte hearing because the court says you don't deal with this and move forward. [00:18:14] Speaker 00: We're going to have to send this back to the magistrate judge and that sort of presentation, at least on my read might suggest. [00:18:23] Speaker 00: that that's some misinformation. [00:18:25] Speaker 00: It's not just the absence of information that he may have received and is cured by what was said at the arraignment earlier on in the proceedings, but this sort of connects those dots in a way that concerns me on the third prong. [00:18:40] Speaker 00: So I wanted to know what the government's position would be on how I should be thinking about that, whether it was a misinformation, a misstatement, rather than the absence of information alone. [00:18:52] Speaker 02: No, I don't believe it was a misstatement on the court's part because she certainly had an obligation to tell him. [00:18:59] Speaker 02: Given the fact that obviously he had been in custody for some time, he had hired Mr. Cornwell to begin with, but there had to be a determination in the event that a decision on new counsel was in his favor, that he would actually qualify either for appointment or he would again have to retain counsel based upon his financial circumstances. [00:19:21] Speaker 02: that decision would have to be made. [00:19:23] Speaker 02: And I think she was just simply informing him of that fact, which it's not a misstatement. [00:19:29] Speaker 00: I think what's troubling is that you're right. [00:19:31] Speaker 00: It is based on his financial circumstances. [00:19:33] Speaker 00: But what the court's presentation suggests is it wasn't linked. [00:19:38] Speaker 00: Eligibility wasn't going to be based on that. [00:19:40] Speaker 00: It was really going to be based on whether he wanted to take this deal or not. [00:19:45] Speaker 00: And that seems different than the sorts of [00:19:52] Speaker 00: cases where the court is just passing on eligibility very generally. [00:19:56] Speaker 00: Maybe it's not a full statement, but the defendant got the correct information earlier on. [00:20:02] Speaker 00: This is sort of linking the eligibility to whether you're going to take the deal. [00:20:08] Speaker 00: And that's the problem I'm having with as perhaps favoring the appellant's position on the third prom. [00:20:16] Speaker 02: Well, I guess I would counter with this judge and I can appreciate that understanding of the record. [00:20:22] Speaker 02: But in looking at what Mr. Eckstein said, it seemed that his sort of concerns revolved around his ability to read the plea agreement itself and that that was part of the reason that he was struggling with whether or not to move forward was he wanted to get a better understanding. [00:20:39] Speaker 02: And I think it should not be lost on the court that [00:20:42] Speaker 02: Judge Teeter gave him the opportunity to extend the hearing out through Thursday so he could sit down and read the plea agreement. [00:20:48] Speaker 02: So it wasn't as if she was forcing him into a decision that day. [00:20:53] Speaker 02: She gave him the option to take the time that he needed. [00:20:56] Speaker 02: She was not insisting that he move to a plea that afternoon. [00:21:01] Speaker 02: And so in the circumstances of what Judge Teeter was doing here, we believe she was taking every step to ensure that the defendant's rights were protected and not trying to coerce him into doing anything that he didn't otherwise want to do. [00:21:15] Speaker 02: His decision obviously was, and again, from a cold record, it's sort of hard to understand, [00:21:21] Speaker 02: maybe what the tenor of his responses were at the time and sort of the tone of Mr. Cornwell's statements and all of that. [00:21:31] Speaker 02: So we don't want to ascribe something to the record that may not be there. [00:21:37] Speaker 02: Everything about the record suggests that Judge Teeter was there to protect the defendant's rights. [00:21:43] Speaker 02: And so we don't see the level of coercion that the defendant sees under the circumstances. [00:21:47] Speaker 02: But again, [00:21:48] Speaker 02: Let's not forget here what the question presented is. [00:21:51] Speaker 02: This isn't the case about coercion on the part of Judge Teeter. [00:21:55] Speaker 02: That is not briefed. [00:21:57] Speaker 02: That was not presented by the defendant. [00:21:58] Speaker 02: The government has not had an opportunity to respond to any claim of coercion. [00:22:04] Speaker 02: This is a case about whether or not the judge ran afoul of Rule 11C. [00:22:09] Speaker 02: Again, our position is that under the circumstances, when you look at the totality of the record, you'll find that her statements were geared toward Mr. Eckstein's decision to make an informed decision on whether or not he wanted new counsel. [00:22:28] Speaker 02: I would echo what Judge Murphy said that [00:22:32] Speaker 02: Judge Teeter saying that the obvious fact, and again, Judge Bacharach, I think, appreciated this as well, the obvious fact that a judge might want to inform the defendant, please understand that if you get new counsel, you should not expect to come back to this court and say, okay, I'm here to plead today, because the state may decide it has changed its mind. [00:22:56] Speaker 03: Well, can I push back on that a little bit? [00:23:00] Speaker 03: And I may be misremembering the record, but I thought Judge Teeter, when you said that she was willing to adjourn for the defendant to talk with counsel, to have him go through the plea agreement, and you mentioned about deferring the change of plea until Thursday, I thought that that was the point in which Judge Teeter said, look, [00:23:25] Speaker 03: you know, we can break, but they may not, when we resume, the government may not be willing to make that same plea deal. [00:23:36] Speaker 03: So, but whether that's true or not, let me ask you in the form of a hypothetical, because any plea, we've all litigated in, whether it's civil or criminal litigation, and part of plea negotiations, or civil negotiations, plea negotiations, [00:23:53] Speaker 03: I would assume involves an ingredient of pressure, showing leverage that you have more downside to rejecting whatever I'm offering civilly or primitively than to accept. [00:24:07] Speaker 03: And if Judge Teeter had said, look, I will break for an hour and you can go through this plea, may not be a good plea deal for you, but [00:24:21] Speaker 03: I'm just telling you, in one hour, there is a chance that the government is going to withdraw that plea. [00:24:31] Speaker 03: So good news and bad news. [00:24:33] Speaker 03: I'm going to give you time, but that time may be for naught. [00:24:38] Speaker 03: If [00:24:39] Speaker 03: Hypothetically, Judge Teeter knew that in the history of the District of Kansas, no one in your office had ever done such an amazing thing, which I think is probably true, to revoke a plea offer because the judge takes a break for 45 minutes or an hour. [00:25:00] Speaker 03: Would that create an obvious participation [00:25:05] Speaker 03: Not because of pressure, because you're right, 11C1 is participation, but isn't that participation in the negotiation? [00:25:14] Speaker 03: If I'm going to say as a judge, you can take a break and you can understand it, but you may have just frittered away your one and only opportunity to get out of this without a trial. [00:25:28] Speaker 02: Judge I think in a vacuum that gets closer to the line, but here I think what we have to appreciate is what Judge Teeter said repeatedly to Mr Eckstein. [00:25:37] Speaker 02: And, and even after he makes the decision she reinforces with him look, I am not telling you, you have to take this plea. [00:25:45] Speaker 02: She does this on a number of occasions to ensure, I think, herself, that she had not crossed the line. [00:25:52] Speaker 02: And she wanted to ensure herself that she had herself had not coerced him. [00:25:56] Speaker 02: And by the fact that she had done that, I think at least three times reinforcing that I am not telling you, you have to do this. [00:26:04] Speaker 02: was her concern at the end of the day that he was making an informed decision about whether to plead. [00:26:10] Speaker 02: But I do agree with you in a vacuum, that is much closer to the line. [00:26:13] Speaker 02: I would say this, however, the fact that this was an ex parte proceeding, I think you have to give some credit to the judge to understand that trying to get into anything related to the plea itself without the government in the room might otherwise cause serious problems. [00:26:30] Speaker 02: And there's nothing to suggest that Judge Teeter would otherwise do something like that under the circumstances when she moved everybody out of the room for one reason and one reason only. [00:26:40] Speaker 02: And that was to determine whether or not the defendant himself wanted new counsel. [00:26:45] Speaker 02: And again, Cano Varela talks about the issue of judges making remarks that should not force them to be trapped. [00:26:52] Speaker 02: into a situation that would cause them to run afoul of rule 11. [00:26:58] Speaker 02: And this statement that she made, as we say, we think was helpful to the defendant to inform him of making a proper decision on whether or not he wanted counsel, because you could see a situation where he returned to the court and said, I'm here to plead and the government had withdrawn. [00:27:15] Speaker 02: And she said, [00:27:16] Speaker 02: Well, you should have told me that the government could have withdrawn the plea. [00:27:20] Speaker 02: And that hypothetical certainly is something that would put the defendant back on his heels and be upset about that by not being informed. [00:27:30] Speaker 02: So I don't think there was ill intent on the judge's part to make the statement about the government's ability to withdraw, that it was simply designed to inform him appropriately to make sure that he was going into the decision with eyes wide open. [00:27:45] Speaker 04: Council, on the CWAT issue, do you claim this is plain air review or harmless air review? [00:27:59] Speaker 02: Judge, we stand by our position that it's plain error review. [00:28:02] Speaker 02: Again, I have studied this issue and I can completely appreciate the problem that exists with the defendant trying to object to his own moving forward. [00:28:15] Speaker 02: It is an odd legal quirk that exists under the circumstances, but our position is when you look at [00:28:22] Speaker 02: Actually, when you look at what this court said in Sandoval Enrique and footnote 14 that the villa instructs that we must always review a rule 11 air either under harmless air rule or plain air rule. [00:28:37] Speaker 02: And when you look at the villa, [00:28:39] Speaker 02: what Justice Ginsburg stated on page 2149, it's very clear that it calls for either harmless error review or in the event that the defendant doesn't object to plain error reviews. [00:28:52] Speaker 02: So there really isn't any concern with the issue about when plain error review occurs. [00:28:58] Speaker 00: Well, I mean, all that case tells us is that it's not structural error. [00:29:03] Speaker 00: So it's either harmless error or plain error. [00:29:07] Speaker 00: And why isn't it that on the facts here, where we have this, I think a really confounding fact that's not present in all of the cases, where in addition, we have this pending motion to withdraw in a conflict with counsel, that this is really not the kind of circumstance where it's fair to apply plain error review. [00:29:31] Speaker 02: Again, Judge Rossman, I can certainly appreciate that position. [00:29:35] Speaker 02: Our position simply is, as the court has currently instructed the parties, that failure to object results in plain error review and that there is support from that all the way from this court to the US Supreme Court. [00:29:47] Speaker 02: And in that circumstances, we believe that we're bound by it. [00:29:50] Speaker 02: Nevertheless, as we stated, we believe that even under harmless error review, under the circumstances that [00:29:57] Speaker 02: The judge's remarks did not otherwise cause the defendant to change his mind under the circumstances. [00:30:04] Speaker 02: And so we think that we win, even under harmless air review but this certainly is a vehicle for the court to clarify. [00:30:12] Speaker 02: exactly circumstances, and I think that they're rare. [00:30:16] Speaker 02: I couldn't find a case directly on all fours with the facts of this case where the defendant's counsel would otherwise object to his own position, and it certainly puts that in a different posture. [00:30:28] Speaker 02: I see I'm out of time. [00:30:29] Speaker 02: I'm happy to stand for further questions. [00:30:31] Speaker 04: May I ask a question? [00:30:32] Speaker 04: You may. [00:30:32] Speaker 04: Sure. [00:30:36] Speaker 04: On the [00:30:40] Speaker 04: Other issue on the disclosure of the right to counsel, the B1D question. [00:30:49] Speaker 04: I want you to assume that we say the fact the magistrate referenced this two years before is just too stale. [00:31:01] Speaker 04: And so that doesn't count. [00:31:04] Speaker 04: What is your view on the third problem of prejudice? [00:31:08] Speaker 02: Well, Judge Murphy, I think when you take into account not only the fact that the magistrate had said that, and let's assume for the moment that it's stale, in the ex parte hearing, it wasn't as if Judge Teeter hadn't expressed to him what his options otherwise would be in the event that he decides that he wants new counsel. [00:31:27] Speaker 02: So it certainly was raised as to whether or not new counsel could be appointed or retained. [00:31:32] Speaker 02: So he did not go into the plea hearing, which occurred right after the ex parte hearing. [00:31:37] Speaker 02: He didn't go in with a sort of, I would argue, a question about whether or not he could otherwise get appointed counsel because Judge Teeter had spoken with him about the possibility of appointed counsel, but that that matter had to be resolved in the wake of a determination on his financial abilities. [00:31:57] Speaker 02: So he didn't, it wasn't something that was unknown to him. [00:32:02] Speaker 04: That sounds like an argument that there was no air. [00:32:05] Speaker 04: What I'm asking about is that the third problem, prejudice. [00:32:11] Speaker 04: If it doesn't count that the magistrate's admonition is good enough, what's your view on prejudice? [00:32:22] Speaker 02: Well, I think if the court found that it was stale, we would otherwise have a difficult time trying to defend the prejudice side of this, except for the fact that the defendant, once he made the decision to enter a guilty plea, and during the call, in the plea hearing itself, did not suggest that he was confused about anything with respect to what his rights were to counsel. [00:32:47] Speaker 02: That being said, [00:32:49] Speaker 02: Even so, let's assume we lose on the third prong. [00:32:52] Speaker 02: On the fourth prong, the facts here do not suggest that a miscarriage of justice would have otherwise occurred in this circumstance because again, he was informed during the arraignment and he was otherwise informed by Judge Teeter during the ex parte hearing. [00:33:08] Speaker 02: So we think that at the end of the day, we would still prevail on the fourth prong. [00:33:14] Speaker 02: Matt, happy to answer any other questions, but otherwise we would ask the court to affirm. [00:33:20] Speaker 03: There's where we did you have any follow-up. [00:33:22] Speaker 03: No, I'm okay. [00:33:23] Speaker 03: Judge Rossman to you. [00:33:25] Speaker 00: I don't. [00:33:25] Speaker 00: Thank you. [00:33:26] Speaker 03: All right. [00:33:26] Speaker 03: Thank you. [00:33:27] Speaker 03: Mr. Lowman and Mr. Mag well presented. [00:33:30] Speaker 03: This matter will be submitted.