[00:00:00] Speaker 03: with 23-6150, US versus Wilson. [00:00:08] Speaker 00: Good morning, Your Honor, and may it please the Court. [00:00:11] Speaker 00: Abigail Pace on behalf of defendant appellant Kay Andre Wilson, and with me at council table is Mark Baker. [00:00:17] Speaker 00: I would like to reserve four minutes of my time, if I may, for rebuttal. [00:00:21] Speaker 03: We'll see how that works. [00:00:22] Speaker 03: It usually doesn't, but we'll try. [00:00:24] Speaker 00: I'll stay optimistic. [00:00:26] Speaker 00: The district court here committed reversible error when it allowed a jury to consider Mr. Wilson's plea agreement and plea-related statements. [00:00:34] Speaker 00: This was legal error for two reasons. [00:00:36] Speaker 00: First, Mr. Wilson did not breach any promise that he wrote in the plea agreement with the government. [00:00:42] Speaker 00: Second, the district court did not expressly find that Mr. Wilson breached the plea agreement before the government was released from its obligations. [00:00:50] Speaker 00: Either of these errors merits reversal. [00:00:53] Speaker 00: I would welcome the court's questions, but I'll start by addressing the breach. [00:00:57] Speaker 00: The government has identified two theories of breach in this case. [00:01:00] Speaker 00: The first is that Mr. Wilson breached the plea agreement because the plea was not completed, that is that the court rejected the plea. [00:01:07] Speaker 00: However, considering the record, what the district court did was try to ascertain that there was a factual basis for Mr. Wilson's plea in accordance with Rule 11B3. [00:01:17] Speaker 00: The district court has a unique obligation to discern that there is a factual basis to protect criminal defendants, that is to make sure that what they have pled to is actually a crime. [00:01:26] Speaker 00: When there is a distance between what the criminal defendant describes and the elements of the crime, the district court has the discretion to reject that plea. [00:01:36] Speaker 00: However, when it does so, everybody goes back to square one. [00:01:39] Speaker 00: That is, the plea agreement either needs to be drafted again or the government may proceed to trial without the benefit of the plea-related statements. [00:01:48] Speaker 02: Could the district court have simply relied on the factual basis that was included within the plea agreement? [00:01:54] Speaker 00: It could, Your Honor. [00:01:54] Speaker 02: And left it. [00:01:55] Speaker 02: accepted the plea on that. [00:01:57] Speaker 00: Yes, Judge Phillips, this court has stated in United States versus Kern that the defendant does not have the responsibility to allocute in open court and that the district court may rely on, quote, anything in the record to determine the factual basis. [00:02:10] Speaker 00: Here, there was a pre-sentence report and there had been a preliminary hearing with a finding of probable cause and the district court could have relied on that or in addition, statements from counsel, including government counsel, to determine that there was a factual basis. [00:02:24] Speaker 00: Now, we're not saying that the district court made an error in that regard, but that helps explain why Mr. Wilson's statements at the plea colloquy do not constitute breach. [00:02:34] Speaker 00: In addition, when we look at the language of the plea agreement in this case, Mr. Wilson did not make a promise to allocute or to personally provide the factual basis. [00:02:43] Speaker 00: Instead, he promised to plead and in his writing did plead that he was guilty of the five elements of conspiracy. [00:02:50] Speaker 00: He reiterated that at the plea colloquy, and when asked by the government, agreed again that he agreed to each of those elements. [00:02:58] Speaker 00: There is no other element that he promised that he didn't fulfill at the plea colloquy. [00:03:03] Speaker 00: Instead, when the district court fulfilled its independent role to determine whether there was a factual basis, it rejected the plea, which the district court has discretion to do. [00:03:11] Speaker 04: So, counsel, once that happened and we fast forward on the eve of trial, the government files a motion and [00:03:19] Speaker 04: regarding this plea colloquy. [00:03:22] Speaker 04: My reading of the record is that the defendant didn't respond to that motion in Lemonade. [00:03:26] Speaker 04: How was the district court on notice that there was a factual dispute as to breach? [00:03:31] Speaker 00: The district court was on notice first because of what happened at the plea colloquy. [00:03:35] Speaker 00: There was a distinction there about what the defendant actually said, and the district court said that's not enough. [00:03:41] Speaker 00: You have to go to trial. [00:03:43] Speaker 04: Yeah, but that's about whether or not there's a factual basis to accept the plea. [00:03:46] Speaker 04: That's not whether or not [00:03:48] Speaker 04: the defendant has breached the terms of the plea agreement. [00:03:51] Speaker 00: Sure. [00:03:51] Speaker 00: So at the motions and limiting phase, you're correct, Judge Federico, that the government filed a motion for an express finding of breach, recognizing that there had been no finding on the record up to that point. [00:04:00] Speaker 00: That notified the district court that there was an issue and the district court passed on it. [00:04:04] Speaker 00: According to United States versus Samuels, that's enough to preserve the issue for appeal. [00:04:09] Speaker 00: In addition, Mr. Wilson's counsel objected at the motions and limiting phase, and because the exhibit was not pre-admitted, [00:04:16] Speaker 00: He objected again when the government sought to introduce the plea agreement through Agent Cooper. [00:04:20] Speaker 00: So there are three instances where it was drawn to the district court's attention and it was not resolved whether there was a breach. [00:04:26] Speaker 00: The exhibit was just admitted. [00:04:28] Speaker 04: But reading the transcript of the Lumine conference, there seems to be some reference to a chamber's discussion. [00:04:33] Speaker 04: Is there anything in the record that shows that there was an agreement by the parties as to the breach? [00:04:40] Speaker 00: There is not. [00:04:41] Speaker 00: The discussion in chambers was not recorded or transcribed, and there is a dispute over whether there was a finding of breach in that chambers meeting. [00:04:49] Speaker 03: Who has the burden here? [00:04:53] Speaker 03: The judge after the in chambers conference said, is there anything we need to put on the record? [00:05:03] Speaker 03: Words to that effect. [00:05:04] Speaker 03: Isn't that correct? [00:05:05] Speaker 00: That's correct. [00:05:06] Speaker 03: Nobody said anything. [00:05:11] Speaker 03: There's no record. [00:05:12] Speaker 03: And the party who lost in district court, I would think, would have had the burden to put on the record what the party wants to have now. [00:05:22] Speaker 03: Is that correct? [00:05:23] Speaker 00: I understand, Judge Hartz. [00:05:25] Speaker 00: The transcript says that after they came out of this chambers meeting that was not recorded, the district court said, is there anything else I need to put on the record? [00:05:32] Speaker 00: The government, again, notified the district court that it had not made an express finding of breach. [00:05:37] Speaker 00: And then it moved on to the discussion of admitting the plea agreement. [00:05:40] Speaker 00: That alone notifies the district court that there was an issue that needed to be resolved and the district court passed on it. [00:05:47] Speaker 00: Again, the objection of Mr. Wilson's counsel preserves that for appeal and the government has not argued here that the issue was not preserved. [00:05:55] Speaker 03: Let me ask you about the breach because I'm more troubled by that than anyone else seems to be. [00:06:04] Speaker 03: I double checked and this opinion has been filed. [00:06:08] Speaker 03: But there was a recent opinion in our court in which the government agreed not to object to the sentencing at the low end or sentencing within the guideline range. [00:06:23] Speaker 03: And the prosecutor said, we agree with that, but then proceeded to discuss the long criminal record of the defendant, which [00:06:40] Speaker 03: Mine encouraged the judge to sentence above what the parties had agreed to. [00:06:46] Speaker 03: And the panel, I was on the panel, we expressed displeasure with that. [00:06:51] Speaker 03: That's acting in accordance perhaps with the letter of the agreement, but not acting consistently with the agreement. [00:07:01] Speaker 03: Isn't that exactly what we have here? [00:07:03] Speaker 03: The defendant says in his plea agreement, I did this, dah, dah, dah, dah. [00:07:09] Speaker 03: But then when asked by the judge whether he did those things, essentially said he didn't deny it. [00:07:18] Speaker 03: Said, I didn't know what was going on. [00:07:21] Speaker 03: I was just there to smoke some pot or whatever it was. [00:07:25] Speaker 03: Why isn't that precedent, why doesn't that require rejecting the argument that he didn't breach the plea agreement in this case? [00:07:35] Speaker 00: It doesn't require that, Judge Hartz, for two reasons. [00:07:39] Speaker 00: First is the way that courts have traditionally read plea agreements, and that incorporates this defendant's reasonable understanding of the promises that they made. [00:07:48] Speaker 00: So it's a semi-objective standard, and it looks to what this specific defendant, who's unsophisticated, has a little bit of college, knew to the federal court system, would have understood those promises to mean. [00:07:58] Speaker 00: And he maintained consistently that he was guilty, and he was present at the scene, knew something illegal happened, [00:08:05] Speaker 00: and got in the car and went the same direction. [00:08:07] Speaker 03: Why do you say he repeatedly said he was guilty by saying the plea agreement goes through the elements of the offense, does it not? [00:08:19] Speaker 03: Correct. [00:08:19] Speaker 03: So he says, I joined this, I know what's going on, whatever the language was. [00:08:25] Speaker 03: And then when the judge asks questions about what he did, he denies those things. [00:08:32] Speaker 03: That's inconsistent with what he said in the plea agreement. [00:08:36] Speaker 03: Is it not? [00:08:37] Speaker 00: It's not inconsistent, Judge Hartz, according to this defendant's understanding. [00:08:41] Speaker 00: And if we look to the case law in this circuit, United States v. Coyote and United States v. Anaya identify that presence at the scene, knowledge of illegal activity, and failure to extradite yourself from the situation is sufficient to sustain a conviction for drug conspiracy. [00:08:58] Speaker 00: And if that's sufficient to survive a jury verdict and appellate review, [00:09:01] Speaker 00: Mr. Wilson could reasonably have believed that being at the scene where a legal activity was taking place and participating enough, getting in the car where they asked him to go and driving the same direction would be enough to be guilty on those elements. [00:09:15] Speaker 03: That's enough to sustain a verdict. [00:09:19] Speaker 03: But it's not the same as admitting the elements of the offense. [00:09:25] Speaker 03: A jury might convict on the evidence, probably would have in this case. [00:09:30] Speaker 03: But he denies that he had the state of mind necessary for the elements of the offense, did he not? [00:09:36] Speaker 00: I take your point, Your Honor. [00:09:37] Speaker 00: But Mr. Wilson was never asked if he was denying any of the elements. [00:09:41] Speaker 00: And when asked by the government, he reaffirmed after his narrative that he admitted that he knew, and that he participated, and that there was interdependence. [00:09:52] Speaker 03: And the judge had significant concerns about that. [00:09:54] Speaker 00: The judge had concerns because if that's not really a crime, the judge has the obligation to reject the plea. [00:10:01] Speaker 00: But the case law here goes to the reasonableness and how Mr. Wilson could reasonably have believed that that was enough to be guilty. [00:10:08] Speaker 00: And it's his belief that determines whether or not he breached the plea agreements in this case. [00:10:14] Speaker 03: Just one more question on this line. [00:10:17] Speaker 03: Sure. [00:10:17] Speaker 03: You say he understood that, but the plea agreement, he says, I knew what was going on and I was willing to participate in it. [00:10:27] Speaker 03: That's what he knew. [00:10:28] Speaker 03: How do you respond to that? [00:10:31] Speaker 03: I mean, you're saying what he knew was all I have to do is [00:10:36] Speaker 03: to these facts, you can find me guilty, which may be true. [00:10:40] Speaker 03: But then what he said in court contradicted what he said in the plea agreement. [00:10:47] Speaker 03: Do you agree with that? [00:10:48] Speaker 00: I agree that there is a legal daylight between what he said and what the judge may have required for those elements. [00:10:55] Speaker 00: But in Mr. Wilson's mind, that would have been enough to convict him of guilty. [00:11:01] Speaker 00: And in his mind, he maintained consistently that he was guilty and wanted to plead guilty. [00:11:05] Speaker 00: If the judge rejected it in its discretion or because there was a lack of factual basis, that is the district court's right, but it does not mean that Mr. Wilson breached because his intent was always to plead guilty. [00:11:18] Speaker 00: In addition, I think this goes to the second part of my argument discussing the need for a finding. [00:11:23] Speaker 00: Part of the reason that we have these procedural protections for criminal defendants is so that we can understand what the district court actually found to be a breach. [00:11:32] Speaker 00: Here, the district court asked about the five elements that he pled to, and the government again asked Mr. Wilson if he agreed to those elements. [00:11:39] Speaker 00: There's no evidence that the district court ever asked him which of those elements he disagreed with because he affirmed all of them. [00:11:48] Speaker 04: Council, what standard of review do you think we should employ here? [00:11:51] Speaker 04: In your brief, you mentioned abuse of discretion regarding the evidentiary questions de novo under Guzman as to [00:11:58] Speaker 04: whether or not the procedures were accurate to determine breach and as to whether there was a breach. [00:12:02] Speaker 04: But then you also argue plain air. [00:12:04] Speaker 04: So which standard do you think is most appropriate and why? [00:12:08] Speaker 00: I noticed that my time is running out but I'd like to answer your question Judge Federico. [00:12:11] Speaker 00: So the standard of review under Guzman is de novo and the government has conceded that in their brief. [00:12:16] Speaker 00: Abusive discretion is appropriate for the evidentiary issue because the district court was on notice that this was going to be a problem and there was unresolved tension between the parties at the time that it was admitted. [00:12:27] Speaker 00: We argued plain error only in our opening brief and there's a footnote in our reply brief where we say because the government hasn't addressed it [00:12:34] Speaker 00: not pursuing that argument. [00:12:35] Speaker 02: Back to Guzman, what sort of a hearing is required? [00:12:38] Speaker 02: Is it evidentiary hearing? [00:12:40] Speaker 00: Guzman says if there are factual issues, they need to be resolved. [00:12:43] Speaker 02: At a hearing. [00:12:44] Speaker 02: At a hearing. [00:12:45] Speaker 02: What kind of a hearing? [00:12:46] Speaker 00: Ideally, it would be a hearing where both parties are heard. [00:12:49] Speaker 00: And if need be, they can present factual evidence or at least can identify what the district court finds to be a breach and discuss what element of the plea agreement has been discarded here. [00:12:58] Speaker 02: And the unreported by the court reporter hearing [00:13:04] Speaker 02: Qualified doesn't qualify. [00:13:06] Speaker 00: It doesn't qualify under Guzman, not necessarily because of the hearing component, but because of the requirement for an express finding and the requirement that the finding precede the government's being relieved of its obligations. [00:13:17] Speaker 02: So if it went back to the district court, what should the district court be required to do? [00:13:22] Speaker 00: So the district court should hold a hearing and identify what the government has identified as a breach and Mr. Wilson should have a chance to respond. [00:13:29] Speaker 00: and clarify his position if there need be any, or if there is a factual issue as to which part of the agreement was breached, or Mr. Wilson's reasonable understanding that could be clarified. [00:13:39] Speaker 03: In Guzman, I'm not sure it's the typical, but a common plea agreement is to cooperate. [00:13:47] Speaker 03: And then there may be factual issues regarding whether the defendant cooperated or not. [00:13:56] Speaker 03: It's not clear to me what the facts are that are in dispute here. [00:14:01] Speaker 03: What he agreed to in the plea agreement is written. [00:14:05] Speaker 03: What he said at the time of the plea hearing is undisputed. [00:14:13] Speaker 03: There's a record of it. [00:14:15] Speaker 03: What fact findings are necessary? [00:14:20] Speaker 03: It's important to determine why the district court thought there was a breach. [00:14:24] Speaker 03: But that's not a fact question. [00:14:26] Speaker 03: That's a legal question, is it not? [00:14:28] Speaker 00: That's correct. [00:14:29] Speaker 00: But in this instance where Mr. Wilson provided a narrative and the district court rejected the plea agreement, it would be necessary to determine whether Mr. Wilson reasonably believed he rejected any of the agreements in the plea. [00:14:41] Speaker 00: If there are no further questions, I'd like to reserve 26 seconds for the panel. [00:14:48] Speaker 01: Good morning. [00:14:50] Speaker 01: please the court. [00:14:52] Speaker 01: Judge Hartz, as you just indicated, this court has not been shy in acknowledging that the government may not pay lip service to an agreement. [00:15:04] Speaker 01: It may not refrain from doing what a plea agreement clearly contemplates it doing. [00:15:11] Speaker 01: And by the same token, courts have acknowledged that plea agreements are two-way streets. [00:15:16] Speaker 01: They impose obligations on [00:15:19] Speaker 01: both parties, the government and the defendant, which is why Mr. Wilson, who had signed a plea agreement in which he stated he would plead guilty to a very specific drug conspiracy, one that occurred on April 28th, 2021, and one that specifically involved methamphetamine, breached that agreement when he appeared before Judge Russell in front of the district court. [00:15:48] Speaker 01: and stated that he didn't know anything about any methamphetamine that day. [00:15:53] Speaker 01: He didn't have any role in the conspiracy. [00:15:57] Speaker 02: Well, is that quite right? [00:15:58] Speaker 02: Because the petition for the agreement, paragraph 48, provided the factual basis, a written factual basis, which is very general. [00:16:07] Speaker 02: It conspired with others to distribute a quantity, and the statute is written under that. [00:16:13] Speaker 02: The defendant never backed off that. [00:16:16] Speaker 02: The plea agreement was falling apart and the district court was dissatisfied with what the district court was hearing. [00:16:22] Speaker 02: The prosecutor stood up and read this exact language to the defendant and said, so do tell. [00:16:28] Speaker 02: And the defendant said, yes, I agree with all of that and continued to want to plead guilty. [00:16:33] Speaker 02: So the defendant did not back off a single word of what the defendant agreed to plead to in this paragraph. [00:16:40] Speaker 02: And it seems to me that the real problem here is you're dealing with a lay defendant who these terms, conspiracy and distribute and so forth, are not as familiar as they may be to us. [00:16:52] Speaker 02: And accordingly, went into court saying, all I have to do is say this and I'll be guilty. [00:16:58] Speaker 02: And then came these other questions which were not anticipated by the defendant. [00:17:03] Speaker 02: And it all could be solved by the government in this case. [00:17:07] Speaker 02: In other words, I think the more sympathetic parties to the defendant, because the government could have put in this paragraph all of the things that the district court questioned the defendant about. [00:17:19] Speaker 02: Did you beforehand, did you know that there was going to be methamphetamine transport? [00:17:23] Speaker 02: What was your role? [00:17:24] Speaker 02: You were driving. [00:17:25] Speaker 02: Which segments of this trip? [00:17:27] Speaker 02: And if those were all written in that paragraph and then the defendant backed off of that, I would completely understand your position. [00:17:36] Speaker 02: But when you write this kind of a general statement that the defendant sticks with at the plea hearing, it seems to me that's the government's fault rather than the defendant's, if you could respond to that. [00:17:48] Speaker 01: Of course, Your Honor. [00:17:49] Speaker 01: Well, Judge Phillips, I certainly think that the government, there's no question the government could have put additional [00:17:54] Speaker 01: language into the plea agreements. [00:17:56] Speaker 01: I know many districts do do that. [00:17:59] Speaker 01: But that said, I respectfully disagree with the idea that he backed off, or he did not back off what he had agreed to. [00:18:08] Speaker 01: Because yes, the plea petition indicated that he agreed to, he conspired to distribute controlled substances. [00:18:16] Speaker 01: But what we're looking to is what the plea agreement states. [00:18:21] Speaker 01: And the plea agreement, page two, [00:18:25] Speaker 01: 402, volume 1, says that he agrees that on April 28, 2021, in the Western District of Oklahoma, five elements of drug conspiracy. [00:18:40] Speaker 01: He agreed to violate federal drug laws, that he knew the essential objective, that he voluntarily involved himself, that there was interdependence, and that the conspiracy involved methamphetamine. [00:18:51] Speaker 01: Now, Judge Phillips, I take your point that, you know, [00:18:54] Speaker 01: A word like interdependence, a layman is not necessarily going to understand that. [00:19:01] Speaker 01: But I think the threshold question is, did Mr. Wilson understand that he was agreeing to violate a federal drug law involving methamphetamine? [00:19:14] Speaker 01: Because those are terms that are easy to understand. [00:19:19] Speaker 01: And while Mr. Wilson appears to be arguing on appeal that he did not understand, [00:19:25] Speaker 01: those elements, the record tells a different story. [00:19:30] Speaker 01: I mean, he testified at trial. [00:19:33] Speaker 01: And his counsel asked him, I believe over the government's objection, why did you plead guilty? [00:19:44] Speaker 01: And Mr. Wilson says on page 369 of volume 3 of the record that he was scared. [00:19:53] Speaker 01: He signed the agreement because he was scared. [00:19:55] Speaker 01: So there's nothing in there, Judge Phillips, to indicate that the reason he signed this plea agreement was somehow because he didn't under... There's nothing to suggest that he signed the plea agreement and then when he appeared before Judge Russell, didn't understand that he was going to have to admit to a conspiracy involving methamphetamine. [00:20:14] Speaker 02: Well, he was scared of the charge and the charge was reduced, right? [00:20:17] Speaker 02: Correct. [00:20:18] Speaker 01: But again, I think if that is the only reason that Mr. Wilson is offering during [00:20:23] Speaker 01: his testimony. [00:20:25] Speaker 01: That is the only reason he's offering for why he signed the plea agreement. [00:20:28] Speaker 04: Why does that matter at all, what he testified to at trial? [00:20:32] Speaker 04: We're looking backwards to whether or not he bleached a plea agreement. [00:20:37] Speaker 04: Isn't the most relevant inquiry what he agreed to in the contract, which is the plea agreement, and what he said in open court at the change of plea hearing. [00:20:44] Speaker 04: And as Judge Phillips pointed out, the government, I'm going to assume here, drafted the plea agreement with the factual basis. [00:20:51] Speaker 04: He agreed to all the facts that were in the plea agreement. [00:20:53] Speaker 04: He reaffirmed those again at the hearing. [00:20:56] Speaker 04: It was the judge's dissatisfaction as to whether or not those facts met the elements, and then further questioning. [00:21:01] Speaker 04: And then at that point, the government really says nothing other than to restate the facts of the plea agreement. [00:21:07] Speaker 04: So where's the breach? [00:21:10] Speaker 01: A couple of points on that, Judge Federico. [00:21:12] Speaker 01: So the reason it matters is because Guzman asks us, the second prong is, what is the reasonable understanding at the time that the plea is [00:21:20] Speaker 01: And if Mr. Wilson, now on appeal, is trying to say, well, I reasonably understood when I appeared before Judge Russell, or I guess I did not reasonably understand I was going to have to admit to a conspiracy involving methamphetamine, that is undercut by what happened at trial, where he's clearly saying that the reason he pled guilty was not because of some misunderstandings, because he was scared. [00:21:40] Speaker 01: Now, where's the breach? [00:21:42] Speaker 01: Well, the breach is because he didn't admit the elements of the offense. [00:21:46] Speaker 01: And if there's, I'd like to point the court to, [00:21:50] Speaker 01: to volume 3, page 386 of the record. [00:21:55] Speaker 01: It's not referenced in our briefs, but I think it's very helpful. [00:22:00] Speaker 01: This came at the tail end of Mr. Wilson's examination. [00:22:04] Speaker 01: Defense counsel got back up to do a redirect examination. [00:22:10] Speaker 01: And the defense counsel was attempting to elicit from Mr. Wilson that the judge did not, quote, accept the plea of guilty. [00:22:21] Speaker 01: We, of course, objected at trial on the basis that this would suggest, if the jury were to hear this, this would suggest that the court had prejudged the evidence. [00:22:33] Speaker 01: It had refused to accept the guilty plea because it thought Mr. Wilson was innocent. [00:22:37] Speaker 01: And so there was this exchange outside the presence of the jury, but on the record, in which Judge Russell addressed the defense counsel what he would be permitted to state and ask Mr. Wilson. [00:22:51] Speaker 01: And what Judge Russell said is he turns to Mr. Wilson's counsel and says, what I'm going to allow you to do is say, after you refuse to admit the elements of the offense, after you refuse to admit the elements of the offense, the judge did not accept your guilty plea. [00:23:10] Speaker 01: And so why that matters is I think it really puts to bed this notion, Judge Hartz, as you pointed out, that there isn't a factual dispute here. [00:23:18] Speaker 01: It's obvious from the record that the district court found that there had been a breach. [00:23:23] Speaker 01: You have an instance of him on the record clearly stating that Mr. Wilson did not admit the elements of the offense. [00:23:31] Speaker 01: And why that matters, back to your point, Judge Phillips, is because page two of the plea agreement says that Mr. Wilson, quote, must admit and does admit all five elements of the offense. [00:23:45] Speaker 01: And so there clearly was a finding from Judge Russell that Mr. Wilson breached the elements of, excuse me, it breached the plea agreement. [00:23:55] Speaker 02: Well, back to the plea advisement in paragraph 48, which contains the factual basis. [00:24:01] Speaker 02: Does that not contain all the elements of the offense? [00:24:05] Speaker 02: And I can read it to you if you want. [00:24:07] Speaker 01: It does, Your Honor. [00:24:08] Speaker 01: It would satisfy... [00:24:11] Speaker 02: gives all of the elements of the offense. [00:24:12] Speaker 02: The plea is falling apart before everyone's eyes. [00:24:16] Speaker 02: Mr. Anderson, the ASA stands up and asks the defendant about that, reads that language to the defendant, and says, do you recognize that statement? [00:24:24] Speaker 02: Defendant, yes, sir. [00:24:26] Speaker 02: Mr. Anderson, and do you adopt that statement? [00:24:28] Speaker 02: This is as things are falling apart, to which the defendant responds, yes, sir. [00:24:33] Speaker 02: So he is acknowledging the elements. [00:24:36] Speaker 02: He's just not acknowledging them in the detail that are being asked. [00:24:39] Speaker 02: because he's not prepared for that. [00:24:42] Speaker 02: He goes into court thinking, all right, I signed this factual basis, and I'm going to stick with it, and holds to his word. [00:24:51] Speaker 01: I think the record, particularly his cross-examination in which his attorney got out that he filled in that portion probably undercuts that argument a little bit. [00:25:04] Speaker 01: What he agreed to do, I mean, the operative document here, Judge, is the plea agreement. [00:25:10] Speaker 01: Yes, paragraph 48 of the plea petition satisfied the elements of section 846, because it involved a controlled substance, and there's a predicate act under 841. [00:25:20] Speaker 01: But what Mr. Wilson had agreed to do was not just plead to those basic elements of 846. [00:25:27] Speaker 01: He'd agreed to a specific drug conspiracy on April 28 that involved methamphetamine. [00:25:34] Speaker 01: And when he did not appear before the district court and admit those specific facts, [00:25:40] Speaker 01: He then is in breach of the plea agreement. [00:25:44] Speaker 02: Do you see the danger that I see? [00:25:46] Speaker 02: Here's the danger I see is that defendants who are not particularly sophisticated in the drug world, many of them, and don't know a criminal code from Ernest Hemingway, come in. [00:25:59] Speaker 02: They sign this. [00:26:00] Speaker 02: Their attorney says, here's what you need to do, writes it in there. [00:26:04] Speaker 02: And they say, OK, I'll do it. [00:26:07] Speaker 02: And now they are on the hook. [00:26:08] Speaker 02: They have waived in the plea agreement, 410, asserting rights under Rule 410. [00:26:14] Speaker 02: And to the extent that something like this happens, unbeknownst to them that even can happen, dynamite is unleashed against them in that at their trial, it's going to be coming into evidence to the jury, he already admitted this. [00:26:30] Speaker 02: I don't know how you can have much more explosive evidence than that. [00:26:34] Speaker 02: And again, back to my point. [00:26:36] Speaker 02: This is all in the government's hands. [00:26:38] Speaker 02: The government can write out a much more complete factual basis. [00:26:42] Speaker 02: And you say the plea agreement has these five elements. [00:26:45] Speaker 02: Put it in there. [00:26:46] Speaker 02: Lock it down. [00:26:48] Speaker 02: And then if he comes into court having signed that indeed he was going to do the Cheyenne to Des Moines leg of the trip to Chicago and he knew that the methamphetamine was in there. [00:26:58] Speaker 02: And then he says, well, no, I didn't know that. [00:27:01] Speaker 02: You got yourself a breach. [00:27:03] Speaker 02: But what you have right here is just a big question mark, seems to me. [00:27:10] Speaker 01: Well, as to your point about the danger, Judge Phillips, there's a reason that the plea petition includes several questions about whether you understand all the charges. [00:27:20] Speaker 01: There's a reason that Judge Russell, at the beginning of the plea hearing, asked Mr. Wilson whether he had the charging dock [00:27:30] Speaker 01: He had my co-counsel, Matt Anderson, summarize the charge and the superseding information. [00:27:35] Speaker 01: Mr. Wilson said he understood the charge and the max punishment. [00:27:39] Speaker 01: In other words, Mr. Anderson didn't stand up and say, you're guilty of a drug conspiracy involving controlled substances. [00:27:45] Speaker 01: He read the superseding information, which specifically referenced methamphetamine. [00:27:53] Speaker 01: And so Mr. Wilson, in response, says that he understands the charges. [00:27:57] Speaker 01: He'd answered the questions under oath that he was pleading guilty [00:28:01] Speaker 01: voluntarily that he wished to plead guilty. [00:28:02] Speaker 01: And so if there had been something at that moment where Mr. Wilson said, well, methamphetamine, I don't know anything about that, then I think he might have a stronger leg to stand on in terms of not understanding the purpose of that hearing and what he was going to plead guilty to. [00:28:19] Speaker 02: Was there a Guzman hearing? [00:28:21] Speaker 02: And if not, is that why you're asking for a remand? [00:28:27] Speaker 01: There was a hearing. [00:28:30] Speaker 01: Now, I guess it qualifies as a Guzman hearing, because it would have been both parties had the opportunity to be heard. [00:28:37] Speaker 01: It happened in chambers. [00:28:38] Speaker 01: And we point out in our brief that there was clearly an in-chambers conference that took place. [00:28:44] Speaker 01: But the real reason, Judge Phillips, that we know that a Guzman hearing took place, or just some type of hearing in which this was addressed, is, of course, the reference to the in-chambers and the other motions and the limiting of the decision. [00:28:59] Speaker 01: second, because when I stood up in opening and mentioned the plea agreement after having this in chambers conference only moments before, there was no objection from defense counsel. [00:29:13] Speaker 01: Everybody at that point understood that the evidence was coming in. [00:29:16] Speaker 04: So is your position that the Guzman hearing happened in chambers off the record and not in a public hearing? [00:29:25] Speaker 04: And that we can know that because you mentioned in [00:29:28] Speaker 04: this evidence at opening statement and the defendant didn't object? [00:29:31] Speaker 01: Well, I think that Judge Federico coupled with the fact that there was never an objection made from defendant at trial. [00:29:40] Speaker 04: The argument was never made that it couldn't come in because of... Did he say, Mr. Coyle say, Judge, I don't think it should come in at all when talking about the evidence of the plea offer? [00:29:51] Speaker 01: He did. [00:29:51] Speaker 01: And then he offered a standing. [00:29:53] Speaker 01: His specific objection was standing prejudicial, I believe. [00:29:57] Speaker 01: And again, so there was never an argument below that he did not make that Mr. Wilson did not breach the plea agreement, because everybody understood that the judge had already found a breach, first in the in-chambers conference, and then in the, perhaps not as explicit as we would like, but the court did enter an order dismissing the superseding information for the reasons stated therein, the government's motion, and the only reason granted or given [00:30:26] Speaker 01: was that Mr. Wilson had breached the plea agreement. [00:30:29] Speaker 01: So Your Honors, I see I'm out of time. [00:30:31] Speaker 01: I've gone over. [00:30:31] Speaker 03: I've got some questions. [00:30:33] Speaker 03: I didn't want to interrupt their questions. [00:30:34] Speaker 03: Did you want to pursue them? [00:30:40] Speaker 03: The question is, it sounds like there's a moral issue in the contract breach. [00:30:45] Speaker 03: But aren't we supposed to interpret plea agreements according to contract law? [00:30:49] Speaker 03: Isn't that the underlying form of analysis? [00:30:53] Speaker 03: That is, Judge, yes. [00:30:56] Speaker 03: So there may be some fault here, but it sounds like there was a misunderstanding. [00:31:04] Speaker 03: But the contracts required him to do something, and he didn't do it. [00:31:09] Speaker 03: And he may have good reasons. [00:31:10] Speaker 03: Maybe the prosecutor was a bad person. [00:31:12] Speaker 03: Maybe the defense attorney was lousy. [00:31:15] Speaker 03: That's not the issue here. [00:31:17] Speaker 03: There was a contract, and was it breached? [00:31:20] Speaker 03: Do you agree with that? [00:31:21] Speaker 03: I agree with that, Judge. [00:31:22] Speaker 03: Now, if it was just a misunderstanding about what he had to say, [00:31:28] Speaker 03: Is there anything that kept defendant from then conferring with counsel for a while after this hearing and say, well, we know what he has to admit to. [00:31:41] Speaker 03: I've now done my job and explained the elements of the offense. [00:31:44] Speaker 03: correctly, and he knows this is what he has to admit. [00:31:48] Speaker 03: Was there anything that kept him from going back to court? [00:31:51] Speaker 03: Would the prosecutor have opposed a plea later that day or the next day? [00:31:56] Speaker 03: Is there anything in the record to suggest that? [00:31:58] Speaker 01: There's not, Your Honor. [00:31:59] Speaker 01: And trust me, when the government offers a plea agreement to avoid a trial, we will do what we can to ensure that the plea agreement is fulfilled and that we avoid the trial. [00:32:06] Speaker 01: So there's nothing to indicate that that request was made. [00:32:10] Speaker 01: And again, back to what happened during trial, as far as the [00:32:13] Speaker 01: lack of any argument about there being a misunderstanding, a lack of any argument from Mr. Wilson's counsel about there having been a breach. [00:32:22] Speaker 01: I think that underscores the point that Mr. Wilson simply appeared before the district court, and as he was not the first defendant to do this, and I'm sure he will not be the last, but he could not bring himself to admit that he was involved with the methamphetamine operation [00:32:40] Speaker 01: on April 28, 2021. [00:32:41] Speaker 03: When he testified at trial, trying to diminish the impact of what he said in the plea agreement, did he say he was misled by his attorney about what he had to plead to? [00:32:54] Speaker 01: Not at all, Your Honor. [00:32:55] Speaker 01: The only reason he gave for signing the plea agreement was that he was, quote, scared. [00:32:58] Speaker 02: That was it. [00:33:03] Speaker 02: I haven't said that the prosecutor's a bad person. [00:33:07] Speaker 01: He did a good job. [00:33:11] Speaker 01: Thank you, Your Honor. [00:33:16] Speaker 00: Thank you for the extra time. [00:33:17] Speaker 00: I want to address a couple of things mentioned by my friend on the other side. [00:33:20] Speaker 00: The first is that in the motion to dismiss the superseding indictment and the off-the-record chambers conference, there's this dispute on whether or not a breach was actually found. [00:33:32] Speaker 00: But any finding would have been implicit and would not meet the requirements of Guzman. [00:33:37] Speaker 00: I also want to mention briefly [00:33:40] Speaker 03: What is the fact finding involved? [00:33:42] Speaker 03: What is the factual dispute? [00:33:47] Speaker 03: There's a decision as to whether there was a breach. [00:33:54] Speaker 03: But what were the facts, the underlying historical facts, that you're saying that the district court had [00:34:05] Speaker 00: The first thing that the district court needed to find was which provision of the plea agreement was breached. [00:34:10] Speaker 00: The government has argued that the failure of a plea to go through or the failure to be accepted is breach. [00:34:16] Speaker 00: That would make the defendant a guarantor of the agreement, which is not how [00:34:20] Speaker 00: the plea agreements are traditionally read. [00:34:22] Speaker 00: So that's the first fact that this court would need to find. [00:34:26] Speaker 00: In addition, the district court would need to actually acknowledge whether Mr. Wilson reasonably believed that he reached the plea agreement. [00:34:33] Speaker 00: And that would require some fact-finding into his mental state as well. [00:34:37] Speaker 03: Why is his reasonable belief? [00:34:46] Speaker 03: OK, never mind. [00:34:47] Speaker 03: So whether he reasonably believed [00:34:51] Speaker 03: that he had to, well, that have to do with his reasonable understanding of what he was admitting? [00:34:59] Speaker 03: Yes. [00:35:00] Speaker 03: When he said, I participated in the methamphetamine conspiracy, what's the question in his mind that he doesn't really have to do that? [00:35:12] Speaker 00: You mentioned, Judge Hartz, that plea agreements, excuse me, are creatures of contract. [00:35:18] Speaker 00: But they're not pure textual arguments. [00:35:21] Speaker 00: They are interpreted according to this defendant's reasonable understanding of the promises he made, and that's why his reasonable belief is a factual issue that would need to be resolved by the district court if it did indeed find breach. [00:35:32] Speaker 03: Okay, so the test you say is subjective. [00:35:37] Speaker 03: It's his reasonable understanding. [00:35:39] Speaker 00: It's semi-objective, yes. [00:35:41] Speaker 03: So there are two components, whether it would be reasonable for him to think this and whether he in fact thought that. [00:35:47] Speaker 03: Is that your understanding? [00:35:49] Speaker 00: That's correct. [00:35:49] Speaker 00: And that's why I mentioned the Coyote and Anaya cases to show that his belief and his statements here were reasonable. [00:35:55] Speaker 00: I briefly want to mention remand. [00:35:57] Speaker 00: Remand here is not appropriate under Rule 10E3 of the Federal Rules of Appellate Procedure. [00:36:02] Speaker 00: When the form and content of the district court's opinion is at issue, it is a decision to be made by the Court of Appeals. [00:36:09] Speaker 00: In addition, because the standard of review is de novo, everything on the record is available to this court. [00:36:15] Speaker 00: And finally, I just want to point out the harm to criminal defendants, I see I'm out of time, in a position like Mr. Wilson. [00:36:21] Speaker 00: Mr. Wilson believed he was guilty and tried to plead guilty, was told by the court that what he did was not in fact a crime, and then his plea agreement, which was signed in his own signature, was brought before a jury, and it included all five of the elements that the jury was tasked with finding. [00:36:36] Speaker 00: Rule 11 protects criminal defendants from situations such as this, and I respectfully request that the court reverse. [00:36:42] Speaker 00: Thank you. [00:36:44] Speaker 03: Thank you, Council. [00:36:45] Speaker 03: Case is submitted. [00:36:46] Speaker 03: Council are excused if you're not.