[00:00:01] Speaker 02:
The next case before us today is 24-5094, United States versus Papke.

[00:00:12] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
May it please the court?

[00:00:16] Speaker 04:
I'm Neil Van Dalsum and I represent the defendant appellate, Justin Papke, in this case.

[00:00:25] Speaker 04:
Mr. Papke asked this court to review the district court's

[00:00:29] Speaker 04:
rejection of two different plea agreements.

[00:00:33] Speaker 04:
One of them was an 11 C1A plea agreement and one of them was an 11 C1C agreement.

[00:00:40] Speaker 04:
I'm in the unusual circumstance of having the government agree with me that it was error to reject the second plea agreement, which was a C1A plea agreement.

[00:00:56] Speaker 04:
I do want to make sure that

[00:00:59] Speaker 04:
given that what matters is the court's view of the issues, that the court doesn't have questions about the second plea agreement, which was a C1A plea agreement.

[00:01:12] Speaker 04:
Basically, that plea agreement, the terms were the government was going to dismiss count three, Mr. Papke would plead guilty to counts one and two, and the district court

[00:01:25] Speaker 04:
could sentence to whatever sentence it thought appropriate for the first two counts.

[00:01:32] Speaker 04:
There was nothing about the plea agreement other than the statutory maximums that limited the court's sentencing discretion.

[00:01:41] Speaker 04:
The district court found that it did limit sentencing discretion and rejected the plea agreement on that basis, not using the proper standard to evaluate a charge bargain

[00:01:53] Speaker 04:
as set forth in this court's precedents?

[00:01:56] Speaker 02:
Well, our precedent is a little confusing if you start all the way at the beginning of it.

[00:02:06] Speaker 02:
In particular, we rely on a case, I think, from the Fifth Circuit, United States versus Bean.

[00:02:12] Speaker 02:
And that case appears, the Fifth Circuit seems to be today an outlier.

[00:02:20] Speaker 02:
on where they don't appear to give greater deference to a charge bargain.

[00:02:26] Speaker 02:
Now I will, none of the cases from this circuit until I think Vander, I have to remember the name, isn't actually a charge bargain case, Vander Wolf.

[00:02:42] Speaker 02:
But, you know, you can understand why the trial court was maybe a little confused based on some of our,

[00:02:50] Speaker 02:
statements in the older cases.

[00:02:53] Speaker 02:
And typically, we rely on our oldest published case as opposed to our most recent published case.

[00:03:00] Speaker 02:
Can you tell me why we wouldn't do that here, looking at our reliance on the Bean decision?

[00:03:10] Speaker 04:
The Van der Werf case is directly on point, clearly enunciates a standard

[00:03:19] Speaker 04:
that there should be discretion in favor of the prosecutor's decision to dismiss counts.

[00:03:29] Speaker 04:
And there's good reasons for that rule.

[00:03:33] Speaker 04:
It's not just that it's in the case, it's that the rule makes sense.

[00:03:39] Speaker 04:
When you're looking at dismissal of a count, it is

[00:03:44] Speaker 04:
really not that much different from the decision to not charge something in the first place or to dismiss account during the pendency of a case.

[00:03:57] Speaker 04:
The Robertson case also, even though it did not involve a charge bargain, speaks to charge bargains.

[00:04:06] Speaker 04:
And in footnote 14,

[00:04:09] Speaker 04:
goes, speaks to the standards that apply to dismissal of counts, because that is the substance of what's happening in a charge bargain.

[00:04:20] Speaker 04:
In exchange for, you're going to plead guilty to these counts and these counts are going to go away.

[00:04:27] Speaker 04:
And even more commonly in most plea agreements, and we're not going to charge you with anything else, that we are concluding this case without further charges.

[00:04:39] Speaker 02:
Even in a charge plea, the district court can reject it.

[00:04:44] Speaker 02:
Isn't that correct?

[00:04:46] Speaker 04:
The district court has discretion to reject it.

[00:04:49] Speaker 04:
But that discretion, I think a good way to think of it is the district court's discretion in analyzing a charge bargain is to make sure that the prosecution is not

[00:05:07] Speaker 04:
violating the discretion that it has in some way.

[00:05:12] Speaker 04:
And I think that it really should be limited to contexts where the prosecution is, there's some kind of corruption involved.

[00:05:24] Speaker 04:
They're just flat not wanting to do their job, where it is a matter of the public interest where a sitting judge looks at it and says,

[00:05:35] Speaker 04:
This is an unjust outcome that is harmful to the public interest more broadly.

[00:05:45] Speaker 01:
But Counsel, isn't that what happened in this case?

[00:05:47] Speaker 01:
Tell me why you don't think that happened here.

[00:05:49] Speaker 04:
That didn't happen here because the government had reasons that it explained on the record for why it was wanting to do this plea.

[00:06:05] Speaker 04:
The plea allowed for a 17-year sentence.

[00:06:10] Speaker 04:
That was actually within the guideline range.

[00:06:13] Speaker 04:
The reasons the government gave were good reasons.

[00:06:18] Speaker 04:
The district court consistently said, well, I hear you that you've got concerns about the victim in the case.

[00:06:27] Speaker 04:
But it's OK.

[00:06:29] Speaker 04:
But that wasn't really the case.

[00:06:32] Speaker 04:
When a guardian ad litem was appointed, the guardian ad litem was saying, this victim would like this to go away.

[00:06:41] Speaker 01:
The report... Well, didn't the district court at that point say, she seems fine to me, she's going to testify just fine?

[00:06:52] Speaker 04:
That was, I believe, at hearings that were related to the first plea agreement.

[00:06:58] Speaker 01:
But he's obviously, the judge believed that.

[00:07:01] Speaker 04:
The judge believed that, but the judge also acknowledged that while I haven't met with her, you have more interaction with her than I do.

[00:07:10] Speaker 04:
And that's normally the case.

[00:07:14] Speaker 01:
Well, maybe we can just get back to my initial question, which is the judge is saying the proposed plea here just is not enough.

[00:07:23] Speaker 01:
It's insufficient for this crime, for public safety.

[00:07:29] Speaker 01:
And that seems to me what your test, as you stated it, that the judge can reject the plea based on public safety concerns.

[00:07:41] Speaker 04:
In any case, a judge could just say, well, in my personal opinion, I think there should be more time.

[00:07:49] Speaker 04:
That has nothing to do with the prosecution's role in looking at the case, figuring out the weaknesses in the case, which were also discussed, the effect on the victim, many other criteria that in any particular case could arise.

[00:08:08] Speaker 04:
And the prosecutor is in a superior position to evaluate those concerns.

[00:08:15] Speaker 01:
Well, then I'm sorry.

[00:08:16] Speaker 01:
So back when you said the public safety exception, you actually don't think there's one.

[00:08:22] Speaker 01:
You misstated that.

[00:08:24] Speaker 04:
What I'm saying is this agreement just flat out violates the public interest in some way.

[00:08:32] Speaker 04:
But that really needs to be focused on the prosecutor is just not doing

[00:08:37] Speaker 04:
Their job, right?

[00:08:39] Speaker 04:
There's corruption involved here.

[00:08:41] Speaker 02:
What about, if I can turn to it, the first plea agreement, the first plea deal, you're saying that the judge abused his discretion with respect to that one as well.

[00:08:53] Speaker 04:
Correct.

[00:08:55] Speaker 02:
On that one, we all agree that one was not a charge plea, right?

[00:09:00] Speaker 04:
Correct.

[00:09:01] Speaker 04:
It is a hybrid plea.

[00:09:02] Speaker 02:
Okay.

[00:09:02] Speaker 02:
So the judge would have more discretion to reject the first plea.

[00:09:07] Speaker 02:
Would you agree with that?

[00:09:08] Speaker 04:
I agree.

[00:09:09] Speaker 02:
Okay.

[00:09:09] Speaker 02:
And why do you think that the judge abused his discretion in rejecting the first plea deal?

[00:09:20] Speaker 04:
Before directly answering that question, I would like to point out an error in my own brief that relates to this.

[00:09:29] Speaker 04:
At pages five and six of my reply brief,

[00:09:33] Speaker 04:
I take the position that some language in the Robertson case that addresses a district court's discretion is dicta.

[00:09:41] Speaker 04:
And upon reviewing my brief and the case, I realize that's not right.

[00:09:46] Speaker 04:
That statement clearly is part of the analysis that the court used to reach its holding.

[00:09:53] Speaker 04:
So please disregard anything that I said about it not being part of the holding.

[00:09:58] Speaker 04:
That is wrong, and I apologize for wasting any time on that.

[00:10:03] Speaker 04:
That being said, Robertson also should not be interpreted to mean that the district court has just unfettered discretion to reject a C1C plea agreement.

[00:10:19] Speaker 04:
Rule 11 is there for a reason.

[00:10:21] Speaker 04:
The Robertson case itself says the district court has to consider the prosecution's stated reasons for entering into the agreement and explain why those are insufficient.

[00:10:34] Speaker 04:
If a court can say, I'm just going to reject this plea agreement for no other reason than I don't want to have my sentencing discretion limited, then that essentially means I don't have to follow rule 11C1C ever.

[00:10:49] Speaker 04:
I can just say that my reason is I don't like that kind of plea agreement.

[00:10:53] Speaker 02:
Well, the reason, I mean, the judge said more than that, I think.

[00:10:58] Speaker 02:
And with respect to the first plea deal, the judge was concerned, as I think Judge Eyde has pointed out, that it wasn't significant punishment for the nature of the crime.

[00:11:14] Speaker 04:
The plea agreements all imposed a significant term of imprisonment.

[00:11:24] Speaker 04:
The district courts,

[00:11:25] Speaker 04:
primary complaint through the process is, I don't like you bringing me the C1C plea agreements.

[00:11:33] Speaker 04:
You've fallen in love with the C1C.

[00:11:36] Speaker 04:
This can be my sentence or your sentence.

[00:11:40] Speaker 04:
And essentially was applying a standard of review that gave the district court more discretion to reject the C1C plea agreement than I think it has.

[00:11:54] Speaker 04:
And on that basis, there is a legal error in applying an incorrect standard.

[00:12:00] Speaker 04:
So that's one problem.

[00:12:02] Speaker 04:
The other is the district court did not, in a meaningful way, do what the case law directs, including Robertson, which is explain on the record why these reasons are insufficient.

[00:12:18] Speaker 04:
The district court gave no weight

[00:12:20] Speaker 04:
to the prosecution's concerns about the victim, even though the Guardian ad litem reports made clear that this was causing serious problems.

[00:12:32] Speaker 04:
The district court was focused on concerns about prior alleged misconduct that the government on the record said, we didn't charge that because she has made inconsistent statements and we don't think we could prove it.

[00:12:50] Speaker 04:
And so a lot of the court's concerns that this isn't enough time are based upon concerns about events that the government says it couldn't prove.

[00:13:02] Speaker 00:
Counsel, can I ask you about remedy?

[00:13:03] Speaker 00:
What is it you're asking us to do?

[00:13:05] Speaker 00:
Because in your brief, you say you want us to vacate, remand, and have the district judge reconsider the plea agreements that were previously presented.

[00:13:13] Speaker 00:
That's not normally the relief we grant.

[00:13:15] Speaker 00:
So is that what you're asking us to do?

[00:13:18] Speaker 00:
And then I have a follow-up.

[00:13:19] Speaker 04:
As I see it, part of my complaint on all of these is that the district court did not apply appropriate standards to either plea agreement.

[00:13:29] Speaker 04:
It could be on the second plea agreement that the directions that would result would make it abundantly clear that the district court needs to accept that plea agreement.

[00:13:40] Speaker 00:
But it seems to me that by accepting the third plea agreement, the first two essentially don't exist anymore.

[00:13:45] Speaker 00:
They've been superseded.

[00:13:47] Speaker 00:
Is that right?

[00:13:48] Speaker 04:
That is wrong and we've made it clear on the record all the way through that preserve the objection preserving the objection and the case law says you can't file a writ on this.

[00:13:58] Speaker 04:
So the way to tee the issue up as an appellate issue is to after the case is over and you're finally sentenced.

[00:14:05] Speaker 04:
come back and challenge what happened before.

[00:14:08] Speaker 04:
There would be no other way to do it.

[00:14:11] Speaker 00:
So if we grant you relief, though, and agree with you and the government that on the second plea agreement there was error that requires a vacated judgment, do we even have to reach the decision as to the district court's rejection of the first plea agreement?

[00:14:26] Speaker 04:
If you find that there is no error on the first plea agreement, then I'm saying, do we even have to get to that decision?

[00:14:31] Speaker 00:
Because you're brief, you start with the second plea agreement, you do them in reverse chronology.

[00:14:37] Speaker 00:
I'm saying, if we agree with you on the second plea agreement, do we even have to decide whether there was error on the first plea agreement?

[00:14:43] Speaker 04:
Yes, because the second plea agreement would not have happened but for the district court's rejection of the first plea agreement.

[00:14:50] Speaker 02:
And the first plea agreement was better for your client?

[00:14:54] Speaker 04:
It was.

[00:14:55] Speaker 02:
What about if we were to remand, vacate and remand, you want us to send it to a different judge, right?

[00:15:06] Speaker 04:
If this is not a personal disagreement with Judge Haas, just to be clear, if this court's ruling is such that it appears very clear

[00:15:22] Speaker 04:
that there shouldn't be any issues in the district court with Judge Heil doing the resentencing.

[00:15:31] Speaker 04:
I don't see a reason to reassign.

[00:15:36] Speaker 04:
If we're going to go back and review the first plea agreement, and the district court has made statements on the record and made his displeasure very, very clear about that plea agreement,

[00:15:50] Speaker 04:
I think it would be appropriate to kind of have a fresh sheet to look at on that one.

[00:15:58] Speaker 02:
Thank you.

[00:16:29] Speaker 03:
May it please the court, Stephen Bryden on behalf of the United States.

[00:16:33] Speaker 03:
I'd like to start with a question that Judge McHugh asked towards the beginning of our colloquy with my colleague on the other side about why we shouldn't default to Bean.

[00:16:46] Speaker 03:
And if I remember correctly, that comes from a discussion in the Kerrigan case where this court discussed Bean.

[00:16:54] Speaker 03:
And the reason why that isn't binding on the court and it should start at Robichan is

[00:17:00] Speaker 03:
That discussion, number one, is addictive to the ultimate holding in Kerrigan.

[00:17:06] Speaker 03:
And the court did not really go into depth on that decision there.

[00:17:12] Speaker 03:
But in Robertson, the court explains what it meant by Kerrigan.

[00:17:16] Speaker 03:
It provides a more fulsome description of the amount of deference that's due in these types of situations.

[00:17:23] Speaker 03:
So I don't think it's necessary to overrule Kerrigan or anything like that.

[00:17:27] Speaker 03:
I think you can look at Robertson as clarifying that statement from Kerrigan.

[00:17:31] Speaker 02:
Let me ask you this.

[00:17:34] Speaker 02:
You've conceded with respect to the second plea agreement.

[00:17:39] Speaker 02:
And is that concession because it's your assessment that the district court started its analysis under the wrong standard of review, under the wrong level of deference,

[00:17:51] Speaker 03:
Yes, Your Honor.

[00:17:51] Speaker 03:
That's one of the two reasons we think that it's inappropriate.

[00:17:54] Speaker 02:
What's the second?

[00:17:56] Speaker 03:
The second would be that even if you gave the court the benefit of the doubt, the reasoning it gave wasn't sufficient to justify tossing a plea that's a pure charge bargain.

[00:18:09] Speaker 02:
And what do you think is required to reject a charge bargain under 10th Circuit authority?

[00:18:16] Speaker 03:
So this court has, Judge McHugh was right earlier saying, there's not a lot of cases that discuss where this line is.

[00:18:23] Speaker 03:
And so looking through the statements that this court has made and trying to give effect to them, this court has talked about the level of deference being similar to the deference for the government being able to dismiss a charge.

[00:18:38] Speaker 03:
It also has cautioned heavily against the district court's second guessing prosecution reasons in this context.

[00:18:45] Speaker 03:
That goes back to a point that Judge Eyde had made earlier about the testimony of the victim in this case.

[00:18:54] Speaker 03:
And there was a significant amount of information put forward by the prosecutor, by the victim, by her father, and then later by the guardian at light on talking about

[00:19:04] Speaker 03:
how difficult this was and how she was going through mental health crises in the course of the case.

[00:19:09] Speaker 03:
And the district court ultimately says, well, I saw her give a victim impact statement, and so I think she should do fine.

[00:19:15] Speaker 03:
And that's the exact type of second guessing that I think cuts against any idea that there's any deference given to the prosecution's decisions.

[00:19:27] Speaker 03:
There obviously has to be a point at which the court can exercise that discretion.

[00:19:31] Speaker 03:
I think my colleague talked about

[00:19:33] Speaker 03:
kind of the obvious cases, you know, there's evidence that like there was a bribe involved or some kind of public corruption involved.

[00:19:41] Speaker 02:
There are some other circuits, I'm sorry, that seem to require that the district court set forth all of the reasons that the government gave for dismissing the charge and then take them one by one on its decision to discuss, to explain

[00:20:02] Speaker 02:
why it's not persuaded by that.

[00:20:06] Speaker 02:
So far, we haven't adopted anything quite like that, have we?

[00:20:12] Speaker 03:
I mean, it is discussed in Robertson that courts have to give explanations.

[00:20:18] Speaker 03:
I don't think there's been anything so clear as that.

[00:20:21] Speaker 03:
Vanderwerf is difficult because I think that case is such an extreme example that I don't necessarily think.

[00:20:29] Speaker 03:
It's tough to make much of an analogy there.

[00:20:31] Speaker 03:
However, that type of analysis makes sense, which is in a case where, for instance, if the government came in with a plea agreement solely to the 2244B charge, which is capped at two years in federal prison, on the same set of evidence, and the district court not only stated what the prosecution's reasons were, but explained why giving some deference to the separation of powers

[00:20:59] Speaker 03:
those had to be subordinated in the interest of justice to the very serious concerns it has, that very well could be an appropriate use of that discretion.

[00:21:10] Speaker 03:
The difference that we have here is between the C1A charge bargain and the ultimate plea agreement, they're on the same level.

[00:21:20] Speaker 03:
It's just below the midpoint.

[00:21:23] Speaker 03:
And if the level of deference that you have to give to the prosecution

[00:21:28] Speaker 03:
can be overcome simply by a relatively small disagreement in the amount of time required, that's not really giving any deference in any way that's meaningful.

[00:21:38] Speaker 03:
So it has to be something more than that.

[00:21:41] Speaker 00:
Counsel, can I ask you about the Guardian-Madlytum appointment?

[00:21:43] Speaker 00:
Was that done suespante by the district court?

[00:21:46] Speaker 00:
It was.

[00:21:47] Speaker 00:
And is that, I mean, how do we, when we're looking back at the record, what inference do we draw about the need to appoint the Guardian-Madlytum when

[00:21:56] Speaker 00:
The US attorney at the first sentencing hearing, the father, the victim, the victim herself all sort of made clear what the victim's desires were for the outcome of the case.

[00:22:07] Speaker 00:
And then the court goes and appoints a guardian ad litem.

[00:22:09] Speaker 00:
That just seemed unusual to me.

[00:22:11] Speaker 00:
Is that unusual in the Northern District?

[00:22:15] Speaker 03:
In my experience, it's rare for a guardian litem to be appointed to a sponte.

[00:22:19] Speaker 03:
I obviously can't speak to every case.

[00:22:21] Speaker 03:
But I do work a lot of child exploitation cases.

[00:22:28] Speaker 03:
I think it's clear from the court's original colloquy in that first plea agreement hearing that it has concerns not that the government talked to the victim about the nature of the bargain, but that the victim truly understood what she was agreeing to by agreeing that this sentence was appropriate in light of the significant statement she made about the long-term impact that this conduct is having on her.

[00:22:57] Speaker 03:
when you're assessing the C-1A plea bargain.

[00:22:59] Speaker 03:
So if the court had that concern and it made the sua sponte appointment and that person agreed entirely with the representations at that point, I think that should weigh pretty heavily

[00:23:13] Speaker 03:
on the amount of weight that the district court can then just put on its reaction to a victim impact statement where the victim is not cross-examined.

[00:23:21] Speaker 03:
She doesn't have to look at the defendant or she doesn't have to talk about the specific details of her sexual assault.

[00:23:27] Speaker 03:
It's a much less stressful situation.

[00:23:31] Speaker 02:
But I mean, there's nothing wrong with a judge if they're concerned that the minor might be being pressured to appoint a guardian ad litem

[00:23:44] Speaker 02:
in that circumstance?

[00:23:45] Speaker 03:
No, I agree Judge McKeon.

[00:23:47] Speaker 02:
You're not in any way raising that as some sign of bias, are you?

[00:23:52] Speaker 03:
No.

[00:23:53] Speaker 03:
The judge had a concern and did what is the appropriate thing to do when you have that concern, which is appoint somebody who's going to report the victim's best interests in the conversation with the victim directly to the court.

[00:24:04] Speaker 02:
You have not asked that this case be reassigned if we were to vacate and remand

[00:24:14] Speaker 02:
But it does appear that this judge has some general bias against plea deals.

[00:24:25] Speaker 02:
Should that concern us in remanding to the same judge?

[00:24:31] Speaker 03:
I don't agree that the record shows that this judge has a bias towards plea deals and certainly not in the same ballpark as the judge in VanderWolf.

[00:24:41] Speaker 03:
While he does

[00:24:43] Speaker 03:
It was pointed out in the briefing that for a short period after this, he does end up having a chamber rule that says he won't accept 11C1C plea agreements.

[00:24:53] Speaker 03:
Of note in this case, he accepted 11C1C plea agreement once the parties came back to him with sufficient explanation for him to accept it.

[00:25:02] Speaker 03:
And ultimately, under the holding of Robertson,

[00:25:06] Speaker 03:
it is appropriate for a district court in this circuit to say, I'm not going to accept 11C1C plea agreements because I don't want to have my discretion and sentencing limited.

[00:25:17] Speaker 03:
And so it would be difficult to imagine that a judge doing something that they're allowed to do would be evidence of the bias.

[00:25:24] Speaker 00:
Do you think we're bound by Robertson, though?

[00:25:25] Speaker 00:
I mean, the rule 11 back then, E1C in 1995, was different than the rule is today.

[00:25:33] Speaker 03:
It was, Your Honor.

[00:25:34] Speaker 03:
But I think that the reasoning that the court

[00:25:36] Speaker 03:
gives is not necessarily dependent on the specific language of that statute.

[00:25:41] Speaker 03:
And the point of judicial discretion and its kind of unique discretion in the context of sentencing bargain was what drove that finding in Robertson.

[00:25:51] Speaker 03:
I think it's clear from the court's case law after that, but that's still what animates the rule about how we're supposed to assess those plea agreements.

[00:25:59] Speaker 02:
I mean, as I recall, Robinson, that wasn't the issue.

[00:26:02] Speaker 02:
That was before the court.

[00:26:03] Speaker 02:
So that would be dictated in that case, wouldn't it?

[00:26:07] Speaker 03:
It would be dictated, Your Honor.

[00:26:08] Speaker 02:
And there are certainly other circuits that have said a general rule that your discretion has to be case specific and that a general rule that says I won't look at any of these is not an exercise of discretion at all.

[00:26:27] Speaker 02:
That makes some sense to me.

[00:26:29] Speaker 02:
I mean, the issue is whether this particular plea under these particular facts should be accepted.

[00:26:37] Speaker 03:
I agree, Judge, that I'm actually, if you take Robertson off the table, I don't have another circuit that has a lot of similar case law other than the fifth, which doesn't really appear to require much from its judges when it overturns cases.

[00:26:58] Speaker 03:
Ultimately, what this court talks about in Robertson is that the district court has a strong needs, not right word, but their sentencing discretion is inherent in the power of a district court judge.

[00:27:14] Speaker 03:
And rule 11C1C doesn't require that courts accept them.

[00:27:18] Speaker 03:
It is one option from which an individual could use to try to resolve their case.

[00:27:23] Speaker 02:
I don't think there's any rule or any type of plea bargain

[00:27:27] Speaker 02:
where the judge is required to accept it, is there?

[00:27:30] Speaker 03:
There's not, Your Honor.

[00:27:33] Speaker 02:
And if you look at, I'm looking at the Sixth Circuit in United States where they talk about that in order to exercise discretion, you have to be looking at the particular facts of a particular case and that a general refusal to consider

[00:27:55] Speaker 02:
blanket rule that I won't consider any of these is an improper exercise.

[00:28:01] Speaker 02:
So, I mean, I'm not sure we're bound by Robertson's discussion of that because it was sort of a throw-off that didn't have anything to do with determination of the actual facts of that case.

[00:28:15] Speaker 03:
I actually apologize, Judge McHugh.

[00:28:17] Speaker 03:
I do believe that that is a non-dicta holding in Robertson, because while there are multiple defendants and multiple issues for Mr. Robertson, the preliminary question before they got to anything else was, was the district court, did it abuse its discretion in rejecting the plea?

[00:28:36] Speaker 03:
And there were four different reasons that the court divined from the district court statements about why it was or wasn't appropriate to reject the plea.

[00:28:44] Speaker 03:
And the court went through all four of those.

[00:28:46] Speaker 03:
The first pertained to local rules and court rules, and then the third pertained to timeliness of the court's calendar.

[00:28:52] Speaker 03:
It found that the three were all abuses of discretion, but the last one that the court categorically refused to accept at the time, E1C plea agreements, the court said that was, in fact, not an abuse of discretion because the court was acting to protect its own sentencing discretion.

[00:29:10] Speaker 03:
And so the only reason Mr. Robertson's conversation at that point goes to the trial is because this 10th Circuit made that finding.

[00:29:18] Speaker 00:
Counsel, the factors under the Mitchell case for deciding whether to assign it to a new judge, government doesn't believe the factors weigh in favor of that decision being made for a new judge.

[00:29:30] Speaker 00:
But what do you think it means to preserve the appearance of justice?

[00:29:33] Speaker 00:
I don't find a lot of case law that explains what that means.

[00:29:39] Speaker 03:
I agree that there's not a lot of case law that explains it.

[00:29:44] Speaker 03:
But it's not an unusual concept.

[00:29:46] Speaker 03:
I think it's consistent with judicial canons and attorney canons about an appearance of conflict, appearance of issue can sometimes override the fact that there isn't one at all.

[00:29:58] Speaker 03:
And so in a case where I think a judge maybe

[00:30:04] Speaker 03:
acts correctly but does so in such a way that on remand it could cause this court serious concern.

[00:30:12] Speaker 03:
That may be a prong under which the court could move it to a new judge.

[00:30:17] Speaker 03:
Looking at the record in this case, this report misunderstood how to properly assess the hybrid bargain.

[00:30:24] Speaker 03:
It gets clearer how to identify a charge bargain versus a hybrid bargain.

[00:30:31] Speaker 03:
I don't believe that it's clear from the record that if this court were to give the district court guidance on how those are to be properly interpreted, the district court wouldn't be able to take that guidance and act accordingly.

[00:30:44] Speaker 03:
Even though there are concerns about the C1Cs in this case, as I said, the court did accept one ultimately.

[00:30:55] Speaker 00:
There may not be a possibility, right?

[00:30:57] Speaker 00:
Because this judge doesn't even consider C1Cs by policy of chambers now, right?

[00:31:04] Speaker 03:
So it did for a period of about four months.

[00:31:07] Speaker 03:
As I understand it right now, there's nothing in the court rules about whether it would accept a C1C plea agreement.

[00:31:15] Speaker 02:
And both of the rules have now been withdrawn, right?

[00:31:20] Speaker 02:
The chambers rules?

[00:31:22] Speaker 03:
Yes.

[00:31:23] Speaker 03:
They're no longer in the chamber rules.

[00:31:27] Speaker 03:
I see that I'm out of time and if there are no further questions, I will.

[00:31:31] Speaker 02:
Thank you.