[00:00:00] Speaker 01: We will go to the next case, United States versus Jordan, number 23-32-73. [00:00:09] Speaker 01: All right, I think we can go ahead. [00:00:12] Speaker 01: Please proceed. [00:00:14] Speaker 04: Judge, I please the court. [00:00:16] Speaker 04: My name is Dan Hansmeyer, and I'm here on behalf of the appellant, Gary Jordan. [00:00:21] Speaker 04: This case involves the dismissal of a federal habeas prisoner's attempt to withdraw his plea based on surreptitious pre-plea government misconduct. [00:00:32] Speaker 04: The district court dismissed the claim because the prisoner, Gary Jordan, did not allege or attempt to prove that his attorney was ineffective. [00:00:41] Speaker 04: As the district court saw it, Mr. Jordan could only withdraw his plea if he could prove ineffective assistance of counsel. [00:00:49] Speaker 04: even though his basis for withdrawing the plea had nothing to do with his attorney's ineffectiveness. [00:00:56] Speaker 04: Mr. Jordan appealed this procedural ruling and Judge Hartz granted a certificate of appealability to address one question, one procedural question, which is whether the district court erred in concluding Jordan could challenge the constitutionality of his guilty plea only via an ineffective assistance of counsel Klein. [00:01:14] Speaker 04: The straightforward answer to this question is yes. [00:01:17] Speaker 02: Okay, but you would agree if the plea was, the attempt to withdraw was based on the government's pre-plea conduct, then you would not be able to appeal other than through an ineffective assistance of counsel argument. [00:01:37] Speaker 04: If the, I'm not sure I understood that question, if the district court had said that? [00:01:42] Speaker 04: No. [00:01:42] Speaker 02: Okay. [00:01:43] Speaker 02: So if your claim was based on pre-plea conduct by the government, if you say it was involuntary because of the government's conduct, you would only be able to pursue that through ineffective assistance. [00:02:01] Speaker 04: I know that's wrong. [00:02:04] Speaker 04: That's not. [00:02:06] Speaker 04: If I'm understanding the question, I disagree with that. [00:02:09] Speaker 04: I do agree that we could not raise the substantive claim. [00:02:13] Speaker 04: I agree with that. [00:02:15] Speaker 04: So because Jordan pleaded unconditionally, pleaded open, that constitutional claim, the substantive claim, he waived that. [00:02:25] Speaker 04: I agree with that. [00:02:27] Speaker 04: But I don't agree that it can't be the basis to challenge the plea. [00:02:33] Speaker 02: No, I understand. [00:02:34] Speaker 02: I think you misunderstood my question. [00:02:37] Speaker 02: Okay. [00:02:38] Speaker 02: Because you have a very nuanced position here, because ultimately your position that you're challenging just the plea itself, the knowing and voluntary nature of the plea itself is based on government misconduct. [00:02:54] Speaker 02: Yes. [00:02:55] Speaker 02: But there are other cases where the government may have done things that are unseemly or inappropriate that cannot be challenged in this context unless you challenge them via an ineffective assistance of counsel claim. [00:03:16] Speaker 02: Right? [00:03:17] Speaker 04: I mean, that's one way of saying it, yeah. [00:03:20] Speaker 04: I mean, I think it's confusing to even loop in the ineffective assistance of counsel [00:03:25] Speaker 02: Well, we have to, because that's the way the case comes to us, right? [00:03:31] Speaker 04: Well, it doesn't. [00:03:32] Speaker 02: We have to address that. [00:03:34] Speaker 04: I mean, we're only addressing it because it was brought up by the district court below. [00:03:38] Speaker 04: I mean, we didn't raise it. [00:03:40] Speaker 02: Right. [00:03:40] Speaker 02: No, I know. [00:03:41] Speaker 02: I mean, that's why we're here, because you disagree with the way the district court did it. [00:03:46] Speaker 02: Yeah, no, that's true. [00:03:46] Speaker 02: Yeah. [00:03:47] Speaker 02: And so your burden is to prove that the district court was wrong. [00:03:51] Speaker 02: Yes. [00:03:52] Speaker 02: Yeah. [00:03:53] Speaker 04: Yeah. [00:03:53] Speaker 04: But I think we've done that. [00:03:57] Speaker 04: You know, I think this court recently reaffirmed just a year ago in Swan that a defendant may challenge a guilty plea as unconstitutional for reasons other than ineffective assistance of counsel. [00:04:11] Speaker 04: That was the case where the government set on appeal that Strickland applies, and that issue could only be [00:04:20] Speaker 04: analyzed as an ineffective assistance of counsel claim, and this court said, no, we take the claim as it comes. [00:04:27] Speaker 04: And that was an unconstitutional plea claim, and we have to consider that claim not a stricter claim. [00:04:33] Speaker 04: And I think this case is identical to that. [00:04:36] Speaker 04: Although the underlying claim is not identical, the error made by the district court is the same error that government made in that case. [00:04:46] Speaker 02: I mean, your claim is one [00:04:49] Speaker 02: that is based on structural error, right? [00:04:58] Speaker 02: Government engaged in misconduct. [00:05:01] Speaker 02: So without me doing anything else, I win. [00:05:05] Speaker 04: Well, we already lost that in Hone, right? [00:05:09] Speaker 02: Right. [00:05:10] Speaker 02: But I mean, how's your case different than that? [00:05:12] Speaker 04: Because Hone went to trial. [00:05:15] Speaker 02: It wasn't a plea case. [00:05:17] Speaker 02: Do you agree that you have to show that your client was somehow prejudiced by the government misconduct that gives rise to your claim? [00:05:25] Speaker 04: So what we think we have to show is two things. [00:05:30] Speaker 04: To show that the plea is involuntary, we think we have to show the government misconduct that it occurred. [00:05:36] Speaker 04: and that misconduct influenced the defendant's decision to plead guilty. [00:05:44] Speaker 04: So the plea claim is entirely different. [00:05:46] Speaker 02: That could happen in the other kinds of cases that we were talking about, where you had nefarious government conduct, but once you plead guilty, it goes away. [00:05:58] Speaker 04: The substantive claim goes away. [00:06:01] Speaker 04: Yes. [00:06:03] Speaker 04: But that doesn't mean that if that misconduct influenced the plea, you can't challenge the plea itself. [00:06:12] Speaker 04: I mean, that's the distinction, a challenge to the plea or a challenge to the conduct itself. [00:06:20] Speaker 02: It's a very fine distinction. [00:06:22] Speaker 04: I mean, I guess, I actually don't think it's that fine. [00:06:24] Speaker 02: And then trying to, and, no, go ahead. [00:06:27] Speaker 04: Never mind. [00:06:28] Speaker 04: No, no, no. [00:06:29] Speaker 04: Go up, please. [00:06:29] Speaker 04: You've got something else. [00:06:30] Speaker 04: I insist. [00:06:33] Speaker 04: I'm not sure that I have much else, to be honest with you. [00:06:36] Speaker 04: I think this is about the simplest appeal, although maybe nuanced, that I've argued in quite some time. [00:06:45] Speaker 04: I'm happy if somebody [00:06:49] Speaker 04: Um, is confused or concerned. [00:06:54] Speaker 02: I mean, put your facts aside, give me another, do you have another example of when this, when you might bring this kind of appeal? [00:07:02] Speaker 04: Uh, yeah. [00:07:04] Speaker 04: I mean, so there are, there's that line of cases. [00:07:07] Speaker 04: So there's, uh, the, the two cases from the fourth circuit, I think Paler and Fisher. [00:07:15] Speaker 04: So the one, one case involved, uh, [00:07:18] Speaker 04: essentially a corrupt cop who was planning evidence. [00:07:22] Speaker 04: That was the government misconduct. [00:07:23] Speaker 04: And the defendant claimed that if he had known about that, he wouldn't have pleaded guilty. [00:07:27] Speaker 04: And Fisher was something similar to that. [00:07:31] Speaker 04: I'm drawing a blank on Fisher. [00:07:34] Speaker 04: But those are essential. [00:07:35] Speaker 04: I mean, really, any type of misconduct and a claim that it didn't. [00:07:41] Speaker 02: That is a claim, though, where there's apparent prejudice [00:07:47] Speaker 02: Where there's an apparent effect on the defendant pleading guilty, yours is one where you've pointed to nothing that the conduct would change other than a statement that I wouldn't have pled guilty if I didn't know they were looking at my video. [00:08:07] Speaker 04: Yeah. [00:08:08] Speaker 04: I mean, that goes to the merits. [00:08:11] Speaker 04: I'm not here arguing the merits of our claim. [00:08:13] Speaker 04: I don't know if it's a solid claim or not. [00:08:15] Speaker 04: We might lose it on remand. [00:08:17] Speaker 02: I get you. [00:08:17] Speaker 02: But I mean, at some point, we sit here and say, gosh, what if we assume you're right? [00:08:26] Speaker 02: Is there anything there? [00:08:28] Speaker 02: Because even below, there wasn't a claim that you were prejudiced, that there was anything. [00:08:32] Speaker 02: Because the landscape changed while you were litigating this case, right? [00:08:37] Speaker 04: Yeah, yeah, I mean I guess some in your favor some against you hone arguably against you because Schillinger is is your premier case Well, it is but it isn't I mean this really is I mean it is in your briefing Well, the claim is the plea claim so yes on the substance on that first prong whether there was government misconduct and [00:09:00] Speaker 04: We're relying on Schillinger, but hone in the structural air aspect of that doesn't come into play. [00:09:05] Speaker 04: I don't think But I do want to know so this idea home was home did I mean? [00:09:14] Speaker 02: home change things for you didn't it because below the position is Hey, we got a claim. [00:09:20] Speaker 02: It doesn't we don't have to prove anything other than they did it and [00:09:28] Speaker 04: I don't think Hohn changes Jordan's unconstitutional plea claim because I think he still has to prove government misconduct and that it influenced his plea. [00:09:38] Speaker 04: Now, here's sort of, I think, one, I don't know if this is another nuance, but... Let me ask you a question, before you get too far ahead of me. [00:09:49] Speaker 02: How do you ever prove that it influenced your plea if you can't prove that the government got something [00:09:57] Speaker 02: on you, like the case you brought up. [00:09:59] Speaker 02: They were manufacturing evidence. [00:10:00] Speaker 02: They were making things up. [00:10:02] Speaker 02: I mean, if I'm a criminal defendant and the government says, I got this guy right, and you interview him, and he says, I've got your guy. [00:10:13] Speaker 02: We've got the gun. [00:10:14] Speaker 02: His girlfriend's going to testify. [00:10:17] Speaker 02: And I've got her statement right here and hands it to you. [00:10:21] Speaker 02: Then you take that back to your client. [00:10:22] Speaker 02: He's like, uh-oh, that's false. [00:10:25] Speaker 02: But I'm concerned about this, because the jury could believe it. [00:10:29] Speaker 02: In your case, I don't see how it could ever even, in an evidentiary hearing, the fact that you were spied on is even relevant, unless it had an effect. [00:10:43] Speaker 04: So again, I mean, that is a merits-based question. [00:10:46] Speaker 04: And you might be right. [00:10:47] Speaker 02: It is. [00:10:48] Speaker 04: I don't know how that would play out. [00:10:50] Speaker 04: I don't know what the district court would think about that. [00:10:52] Speaker 04: But the district court did not [00:10:54] Speaker 04: resolve the case on the merits, and that's all we want. [00:10:57] Speaker 04: Whether we win or lose, I have no idea. [00:11:00] Speaker 04: Whether we can win, I have no idea. [00:11:02] Speaker 04: We just want the district court to resolve the case on the merits. [00:11:07] Speaker 02: Isn't there some peak, though, at what the case is about? [00:11:14] Speaker 02: Because it seems to me in all of the examples, [00:11:18] Speaker 02: where we have allowed these claims like you're talking about. [00:11:22] Speaker 02: You can look at the face of the claim, incompetency, manufacturing evidence, threats to people's family, that those things are improper and could have an undue influence on the plea process. [00:11:41] Speaker 02: Whereas I looked at a camera with no sound. [00:11:45] Speaker 02: I mean, like I said, there's no, [00:11:48] Speaker 02: even allegation of prejudice. [00:11:52] Speaker 02: Otherwise, we're looking at every one of these cases. [00:11:55] Speaker 02: Everybody's going to say, hey, if the government wouldn't have done X, which is wrong, I wouldn't have pled guilty. [00:12:05] Speaker 04: Well, why not? [00:12:05] Speaker 04: I disagree with you on that, because there is a huge difference between raising a claim and moving to withdraw your plea. [00:12:13] Speaker 04: A lot of people don't want to move to withdraw their plea because they're perfectly fine with the plea. [00:12:19] Speaker 04: They just want to challenge the underlying claim. [00:12:21] Speaker 04: So there were over a hundred of these things. [00:12:27] Speaker 04: I'm not sure anyone other than Gary Jordan moved to withdraw his plea. [00:12:30] Speaker 04: If they did, I don't think it's up here on appeal. [00:12:34] Speaker 04: So this is sort of a unicorn of a guy who wants to withdraw his plea and go to trial. [00:12:40] Speaker 04: I don't know why. [00:12:41] Speaker 04: I don't know if it's a good idea. [00:12:42] Speaker 04: I don't know if he's going to be allowed to do that. [00:12:46] Speaker 04: Our position is that the district court should address that claim on the merits. [00:12:50] Speaker 03: How can you address that when there's nothing to address? [00:12:57] Speaker 03: Let's get right down to it. [00:12:59] Speaker 03: Every one of his rights were thoroughly protected. [00:13:03] Speaker 03: His lawyer and the government lawyer did not know anything about this. [00:13:10] Speaker 03: So you can see that there's no prejudice, but you want to have a new trial. [00:13:16] Speaker 03: I don't follow your reasoning. [00:13:19] Speaker 04: Well, it's not my reasoning. [00:13:20] Speaker 04: It's Gary Jordan's reasoning. [00:13:21] Speaker 04: I mean, Jordan is the one who filed... [00:13:25] Speaker 03: And you're not being ineffective. [00:13:27] Speaker 03: You're here to present his side of the case. [00:13:32] Speaker 03: And not to stand out there and say, well, it's him, not me. [00:13:37] Speaker 03: It's you right now. [00:13:39] Speaker 04: Well, it's me claiming it. [00:13:40] Speaker 04: My claim is a procedural claim. [00:13:42] Speaker 03: What are you claiming? [00:13:43] Speaker 03: You're claiming nothing. [00:13:46] Speaker 03: You're claiming you want a new hearing after all the hearings. [00:13:49] Speaker 03: that have been held and all the assurances that he was happy with everything that happened. [00:13:56] Speaker 03: And now we discover subsequently that some people will look at your video, not the attorney in this case. [00:14:06] Speaker 03: And where does that get you? [00:14:08] Speaker 03: It doesn't get you anything. [00:14:09] Speaker 04: Well, I mean, I don't know what it gets me. [00:14:11] Speaker 04: We haven't had a hearing yet. [00:14:12] Speaker 04: Maybe the evidence comes out that the prosecutor did look at it. [00:14:15] Speaker 04: Maybe that doesn't matter. [00:14:16] Speaker 04: So Judge Keller, remember, there is a finding [00:14:19] Speaker 04: Judge Robinson made a finding in these cases that the privy to element was met because of the government's unwillingness to abide by discovery rules. [00:14:30] Speaker 04: So there is a finding that the attorneys, an adverse finding that the attorneys did look at the material. [00:14:38] Speaker 03: Not the attorney representing the government admissions. [00:14:42] Speaker 04: Yeah, no, that exists. [00:14:43] Speaker 04: That adverse finding exists in every one of these cases. [00:14:47] Speaker 02: So if that's true, [00:14:49] Speaker 02: Why did the district court even bother addressing the fact that the three attorneys had submitted an affidavit saying that they were not privy to it and that they didn't look at it? [00:14:58] Speaker 02: They knew nothing about it. [00:14:59] Speaker 04: The district court didn't address that. [00:15:01] Speaker 04: I think she did, didn't she? [00:15:02] Speaker 04: No. [00:15:02] Speaker 04: Isn't that in her order? [00:15:04] Speaker 04: All the district court said was you have to show ineffective assistance of counsel. [00:15:08] Speaker 04: You haven't done that, so you lose. [00:15:09] Speaker 04: That's why we're here. [00:15:12] Speaker 04: My time has disappeared. [00:15:14] Speaker 00: Thank you. [00:15:17] Speaker 00: Good morning, Your Honors. [00:15:18] Speaker 00: Brian Clark for the United States. [00:15:20] Speaker 00: May it please the court. [00:15:21] Speaker 00: Mr. Jordan's claim that his guilty plea was unknowing and involuntary because he was unaware of a Sixth Amendment violation that he alleges took place before he pled guilty is foreclosed by a long line of Supreme Court precedent, from the Brady trilogy to Tollette to Ruiz. [00:15:40] Speaker 00: Now, I think one of the complications in this case and one of the big problems with [00:15:46] Speaker 00: Mr. Jordan's arguments on appeal is that he sort of changes and mischaracterizes what the district court did here and what his claim actually was. [00:15:57] Speaker 00: So he claims that the district court concluded in the abstract that Mr. Jordan could only challenge his guilty plea by showing ineffective assistance of counsel. [00:16:08] Speaker 00: That's not quite what the district court did. [00:16:10] Speaker 00: Rather, what the district court did was to examine Mr. Jordan's claim. [00:16:16] Speaker 00: and Mr. Jordan's claim, and this is on page 179 of the record, and I think taking a long hard look at Mr. Jordan's claim will provide a lot of clarity in this case. [00:16:27] Speaker 00: The very first sentence of that claim is, quote, petitioner asserts that the government's misconduct in violation of petitioner six amendment rights as set full above rendered his guilty plea unknowing. [00:16:42] Speaker 00: And what the district court said was, [00:16:44] Speaker 00: OK, we have a long line of precedent saying that a defendant's lack of awareness of certain government misconduct that predates his plea is not sufficient to render a guilty plea unknowing or involuntary. [00:16:57] Speaker 00: And then it turned its attention to the substantive Sixth Amendment claim. [00:17:01] Speaker 00: And I heard Mr. Hansmeier say that with respect to the substantive Sixth Amendment claim, indeed Mr. Jordan had waived that claim. [00:17:08] Speaker 00: And the only, as this court said in spate, the only avenue for the defendant to pursue that claim [00:17:14] Speaker 00: is through ineffective assistance of counsel. [00:17:17] Speaker 00: That was the district court's analysis. [00:17:19] Speaker 00: And so I think it's important here to sort of parse [00:17:23] Speaker 00: what exactly Mr. Jordan alleged below and now what he's arguing on appeal, because below his claim was all about the fact that his guilty plea was not, quote, knowing. [00:17:33] Speaker 00: That was it. [00:17:34] Speaker 00: Now he's arguing that his guilty plea was rendered involuntary based on some pre-plea government misconduct. [00:17:43] Speaker 00: However, that claim is much like the claim in Tollette. [00:17:47] Speaker 00: in that it was an independent pre-plea constitutional violation that Mr. Jordan now leans on to say, well, I wouldn't have pled guilty if the government hadn't done this thing that I didn't know about. [00:18:01] Speaker 00: And that claim, the substance, the merits of that claim is foreclosed. [00:18:06] Speaker 00: The only way to pursue that Sixth Amendment claim is through ineffective assistance of counsel. [00:18:11] Speaker 00: The district court was right about that. [00:18:13] Speaker 00: And now Mr. Jordan argues [00:18:17] Speaker 00: that he should be able to claim that as long as his guilty plea was influenced by something that he learned about after the fact, that's sufficient for him to challenge his guilty plea as not knowing or involuntary. [00:18:32] Speaker 00: But that's simply not what the cases say. [00:18:35] Speaker 00: If you take a look at Brady, for example, there the defendant said that his guilty plea was coerced by the fact that the statute of conviction, the federal kidnapping statute, [00:18:46] Speaker 00: had an unconstitutional death penalty provision. [00:18:49] Speaker 00: What the Supreme Court said was, well, I'm sorry, that's not enough. [00:18:53] Speaker 00: Maybe that was a but for cause of your plea, but that's not sufficient to render your guilty plea unknowing or involuntary. [00:19:00] Speaker 00: That's entirely consistent with what the district court said here and how it analyzed Mr. Jordan's claim. [00:19:08] Speaker 00: And the same is true in [00:19:10] Speaker 00: and Parker. [00:19:11] Speaker 00: In those cases, the defendants claimed that there was a confession that was unconstitutionally coerced from them. [00:19:19] Speaker 00: The Supreme Court said the same thing. [00:19:20] Speaker 00: That's not sufficient to show that your guilty plea was unknowing or involuntary. [00:19:24] Speaker 00: And so what is required under Brady, so for example, even just taking Mr. [00:19:30] Speaker 00: Jordan's arguments on appeal on their face with respect to voluntariness. [00:19:34] Speaker 00: What's required under Brady is that for a defendant to show that his guilty plea is involuntary, he must show that it was induced or produced by government agents either through [00:19:49] Speaker 00: threats like physical threats or mental coercion that overbears the defendant's will and his desire to plead not guilty and go to trial. [00:19:59] Speaker 00: But that's just not the case that we have here. [00:20:02] Speaker 00: The gravamen of [00:20:04] Speaker 00: Mr. Jordan's claim, even most charitably, was twofold. [00:20:08] Speaker 00: One, that he didn't know certain facts about what the government had done, and two, that there was an alleged Sixth Amendment violation, but neither one of those provides a basis for withdrawing a guilty plea under the precedent. [00:20:24] Speaker 00: And with respect to your question, Judge Carson, about being able to take a peek at the substance of the claim, here I do think you are able to look at the substance of the claim because Mr. Jordan did not preserve the arguments that he's making on appeal. [00:20:42] Speaker 00: He didn't argue that his guilty plea was involuntary below. [00:20:45] Speaker 00: That wasn't his claim. [00:20:47] Speaker 02: You don't think that if you look at his pleadings below that they do a little mix and match of the terms knowingly and knowing and involuntary? [00:20:59] Speaker 00: So if you take a look at just the claim in the 2255 motion, the answer is no. [00:21:07] Speaker 00: He only argues that his guilty plea was unknowing. [00:21:09] Speaker 00: And then even if you look at [00:21:12] Speaker 00: you know, the subsequent filing, so for example, a motion for leave to amend his Section 20-55 motion, which actually primarily related to his first claim, which isn't at issue here, and his Rule 60 motion, [00:21:26] Speaker 00: I mean, the thrust of those is that his guilty plea was unknowing. [00:21:30] Speaker 00: Now, where I think the involuntary piece does come into the mix, candidly, is in the district judge's ruling where she says that a defendant's lack of awareness of certain pre-plea government conduct does not render a guilty plea unknowing or involuntary. [00:21:48] Speaker 00: But the district court did not pass upon the type of arguments that Mr. [00:21:52] Speaker 00: Jordan is making on appeal, that is to say that some government misconduct directly induced or produced his guilty plea. [00:22:02] Speaker 00: And I think those words are important. [00:22:04] Speaker 00: Those are the words that the Supreme Court used in Brady versus United States, induced or produced. [00:22:11] Speaker 00: It's not enough that a defendant simply say, well, it had some effect on my decision to plead guilty. [00:22:17] Speaker 00: In order to show that a guilty plea is involuntary based on government misconduct, the defendant has to allege and show that the government misconduct actually induced or produced the guilty plea. [00:22:31] Speaker 00: That's not what Mr. Jordan alleged. [00:22:33] Speaker 00: Even if you assume that he meant to allege an involuntary in his claim, that's not what he alleged. [00:22:40] Speaker 00: He just says, had I known. [00:22:42] Speaker 00: then I wouldn't have pled guilty. [00:22:44] Speaker 00: But that's not induced or produced in the way that, for example, a threat or some kind of mental coercion or anything like that. [00:22:56] Speaker 00: And so this type of claim, when you look at the cases and try and sort of put this type of claim in a particular bucket, this is very much like the claim in Tollette, where it's an independent claim. [00:23:08] Speaker 00: That is to say, independent of the plea. [00:23:11] Speaker 00: It's government misconduct that may have happened, and it may have happened before the plea, but it doesn't have any direct connection to the defendant's guilty plea itself or those plea proceedings. [00:23:23] Speaker 00: And so it doesn't provide a basis for the defendant then later to come into court and disclaim all of the sort of sworn statements that he made during the plea process. [00:23:37] Speaker 00: And that's a really big deal. [00:23:39] Speaker 00: And that's what the Supreme Court cases all stand for, that those admissions are really important, and they're really hard to overcome afterwards. [00:23:47] Speaker 00: Now, I know that Mr. Jordan, in his reply, argues that this case is nothing like Tollett, and Tollett is distinguishable because Tollett involved a defendant who challenged the constitutionality of his conviction and not the knowing and voluntary nature of his guilty plea. [00:24:05] Speaker 00: But in Tollette itself, the Supreme Court expressly rejected that distinction. [00:24:10] Speaker 00: And it did so when it extended and applied the Brady trilogy to the case in Tollette. [00:24:24] Speaker 00: And I'm happy to keep going unless there are questions. [00:24:27] Speaker 00: I think, and feel free to interrupt me, I think with respect to [00:24:32] Speaker 00: Mr. Hansmeier mentioned the Swan case. [00:24:36] Speaker 00: The Swan case is distinguishable from this case there. [00:24:40] Speaker 00: this court held that the defendant was unaware of one of the rights that he was giving up, and that's what rendered the guilty plea unknowing or involuntary, and it was based on a misrepresentation by his attorney. [00:24:54] Speaker 00: So that case doesn't have anything to do with this one. [00:24:57] Speaker 00: There's no claim like that here. [00:24:59] Speaker 00: Fisher and Paylor, as we explained in the briefs, same thing, and to your point, Judge Carson, those are materially distinguishable because [00:25:07] Speaker 00: In those cases, the courts relied on affirmative misrepresentations by law enforcement that either deceived a defendant into pleading guilty or induced the guilty plea and infected the entire criminal proceeding. [00:25:25] Speaker 00: There's no claim like that here. [00:25:27] Speaker 00: And so in addressing [00:25:30] Speaker 00: sort of what the district court did, and then next, what Jordan argues on appeal, which I think are sort of two different things. [00:25:39] Speaker 00: The district court correctly addressed the claim that was before it the way that Mr. Jordan alleged it. [00:25:45] Speaker 00: And then on appeal, with respect to these voluntariness arguments, plain error review applies. [00:25:50] Speaker 00: And Mr. Jordan hasn't shown that, well, for number one, he's sort of disclaimed any obligation to show plain error. [00:25:59] Speaker 00: there, I think this court's precedents say, well, that argument then regarding voluntariness is waived. [00:26:04] Speaker 00: But even if this court were to reach it, it would have to find that there was an error that was plain, meaning clearly established in the law, and that there was prejudice. [00:26:13] Speaker 00: And the facts just don't bear that out. [00:26:17] Speaker 00: I guess, finally, with respect to the prejudice, sort of what Mr. Jordan has to show in order to [00:26:29] Speaker 00: in order to withdraw his guilty plea, it's not enough to just say, well, after the fact, well, I wouldn't have pled guilty, I would have done things differently. [00:26:37] Speaker 00: Under Lee versus United States, he has to point to contemporaneous evidence, that is, [00:26:42] Speaker 00: Evidence at the time that he pled guilty, where he can say, see, that shows, that in the record there shows, that I wouldn't have pled guilty if I had known this thing. [00:26:53] Speaker 00: I would have gone to trial. [00:26:55] Speaker 00: And he just has never tried to do that. [00:26:58] Speaker 00: All he says is, had I known about this government conduct, I wouldn't have pled guilty. [00:27:04] Speaker 00: That's not sufficient to overcome the admissions that he made under oath. [00:27:08] Speaker 00: When he pled guilty unless there are any questions. [00:27:11] Speaker 01: I'd be happy to before you sit down. [00:27:13] Speaker 01: Yeah, Kelly. [00:27:14] Speaker 01: Do you have any questions? [00:27:18] Speaker 03: All right, thank you. [00:27:19] Speaker 01: Thank you. [00:27:20] Speaker 01: Could you give Appellant's counsel a minute? [00:27:27] Speaker 01: Good you have to because I'm going to ask him a question Thanks [00:27:35] Speaker 04: All right. [00:27:35] Speaker 04: Thanks for the two minutes. [00:27:37] Speaker 02: Let me, let me use up one of them real fast. [00:27:40] Speaker 02: So I'm looking at at least one of the orders that Judge Robinson had. [00:27:44] Speaker 02: I knew I wasn't crazy. [00:27:48] Speaker 02: Petitioner was prosecuted by a USA's Chris Oakley, Trish Hunt and Sherry Catania who submitted affidavit stating they were not aware of the video recording, nor did they view the recording. [00:28:00] Speaker 02: And then later, [00:28:01] Speaker 02: In the discussion, she's talking about Orduno Ramirez. [00:28:05] Speaker 02: And this may not be the order you're talking about, but it's attached to your brief. [00:28:11] Speaker 02: She says, as was the case in Orduno Ramirez, the government submitted an affidavit from the lead prosecutor stating that at no time during their involvement in the case, did they view any video recording of petitioner in a meeting with counsel at CCA. [00:28:25] Speaker 02: And it then goes on to talk about how petitioner sentencing bears no indicia of a tainted proceeding. [00:28:31] Speaker 02: So, I mean, it was something Judge Robinson was considering in this case. [00:28:38] Speaker 02: I mean, I don't know what ultimately maybe it means nothing. [00:28:41] Speaker 04: I mean, that's I guess that's about about how she addressed the sentencing claims. [00:28:46] Speaker 04: I don't know how that plays into right. [00:28:48] Speaker 02: That's fine. [00:28:49] Speaker 02: I don't want to take up all your time on that. [00:28:50] Speaker 02: So you go ahead and say what you want. [00:28:52] Speaker 04: So just to be clear, Jordan filed an affidavit saying, had I known of this, I would have gone to trial. [00:29:00] Speaker 04: The government just stood up and said he didn't do that. [00:29:02] Speaker 04: Yes, he did. [00:29:03] Speaker 04: He did that. [00:29:04] Speaker 02: No, I think they said it was conclusory. [00:29:06] Speaker 02: That he didn't set forth any contemporaneous evidence showing that he actually would have, other than just, I'm saying so. [00:29:15] Speaker 04: I don't know what that means. [00:29:16] Speaker 04: I mean, the man said, had he known of this information, he would have gone to trial. [00:29:20] Speaker 04: I don't know how much more you need than that. [00:29:24] Speaker 04: If you agree with the government that this is a categorical rule, that you cannot raise this, you will create a circuit split, just so you know that. [00:29:33] Speaker 04: I'm out of time. [00:29:35] Speaker 04: Thank you. [00:29:36] Speaker 01: All right. [00:29:38] Speaker 01: Thank you, counsel, for your arguments. [00:29:40] Speaker 01: You are excused.