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Case number 15-3011 at L. United States of America versus Yaya Ali Zatar, also known as Abu Rabha, also known as Yahai Ali Dua Zayder, appellant.

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Mr. Sussman for the appellant, Ms.

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Heller for the appellant.

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Good morning.

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Representing criminal defendants, at least in my view, is never an easy task.

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The job becomes substantially more complicated when that defendant is foreign speaking, does not speak English.

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Perhaps the case gets even more complicated when that person speaks some English.

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Then the lawyer is never certain exactly what his client understands and what his client doesn't understand.

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And moreover, lawyers are freed often, or feel free, to dispense with interpreters and the logistical nightmare of bringing an interpreter, hiring an interpreter, bring an interpreter to jail.

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And clearly, this was the case with regard to Mr. Zaitar.

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Many of the conversations between he and his counsel, Mr. Zaitar's Arabic speaking, many of the conversations between he and his counsel were in English without the benefit of an interpreter.

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His English was – he had been extradited to the United States.

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He arrived not speaking one word of English.

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He had never been in the United States or, to anyone's knowledge, an English-speaking country.

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He was from Lebanon.

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And it's hard to believe that in the several years he was here that he became fluent enough in English to understand legal terms and the significance of those legal terms.

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One thing I was curious about was there was a lot of focus on the language, but not much discussion about his

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understanding of the legal system and how that would factor into how he understood representations or statements from the attorney having no familiarity with this legal system.

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Right and I think you add to that the equation the fact that many people come from legal systems that are far different from ours and the expectations of how the system works

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And the integrity of the system, perhaps even, is far different than a criminal defense.

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Or what the role of a lawyer's statements about what I think will happen.

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Well, that's exactly it.

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I've been before this judge before it's been mean.

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But that hasn't been the argument here.

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So I take it there's nothing I can do with that consideration.

[00:02:22] Speaker 04:
Well, I think it is in the argument.

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I think the question is that there becomes a significant question between promise and prediction.

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I don't think even Rosetta Stone guarantees that the course will allow you to make those distinctions.

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Well, I understand that this was the argument you're making.

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You made it in the brief.

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The brief lists the question presented.

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Question number one, where the plea was not entered into knowingly and intelligently because his attorney provided ineffective assistance by promising that he would receive an 80-month sentence.

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And number two, defense counsel promised the appellant an 80-month sentence to induce his plea of guilty.

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And everywhere in the blue brief,

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You rely only on an effective assistance of counsel and only on the district court making clear error in concluding that there was not a promise.

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Likewise, in the reply brief, that's the only thing I find, that you're relying on an argument that it was, quote, implausible, that the district court's evidentiary conclusions are implausible.

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and have resulted in manifest injustice.

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Am I wrong about that?

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No, I don't think you're wrong, but I think the thrust of the argument is that there was a miscommunication.

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No, I'm sorry.

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That's what I'm asking you about.

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I don't see that as the thrust of the argument that you made in the brief.

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The argument you make in the brief is that defense counsel promised, what was it, 80 months?

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Something in the 80 to 87 months range.

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And the district court found that defense counsel did not make that promise, and you argue that was clear error.

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I don't see an argument that there was, that there was, that you have another ground here.

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So if we decide that there was no promise under whatever our standard of review is, isn't that the end of your ineffectiveness claim?

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No.

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Well, can you point me where in the blue brief?

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You made another argument.

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I think the argument was made in reply.

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I think the argument was made that in these situations, the slippery distinction between promise

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and prediction.

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So you acknowledge you didn't make that argument?

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I didn't make it in the initial brief.

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I think it was made in reply.

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Normally we consider it forfeited if it's not made until the reply.

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Well, of course, I don't think it would be appropriate.

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I think that's the central argument that Mr. Zaitar is now making before this Court.

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I think that the Court is faced with the

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It's based on the situation where the court can be asking or should be asking, what's wrong with this picture?

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And what's wrong with what happened to... So it's not an effective assistance problem.

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It's a different kind of problem.

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Well, I think it borders on two things.

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It borders on ineffective assistance, because I think it's incumbent upon a lawyer, particularly in a foreign speaking situation, but in every situation.

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But I'm confining it to a non-English speaker in this particular situation.

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It's incumbent upon the lawyer in some fashion to make it crystal clear that whatever his predictions are, they are just predictions.

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Yeah, so the lawyer in this case said that he did that.

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Now that's a different question than whether the other side understood it.

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But the ineffectiveness has to be with the lawyer.

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you know, what the lawyer provided.

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The lawyer's testimony was repeatedly, it was explained, and in the plea colloquy there was a court certified interpreter who interpreted the words, which the judge asked, was there any promise of a sentence?

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And he said there wasn't.

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And there was a interpreted plea agreement which he signed, which said there was no other promise.

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All that's fact, right?

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That's right.

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Okay.

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So there can't be, I'm having difficulty seeing this as an ineffective, this aspect of your claim as being an ineffective in this argument.

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Well, I think that I would adhere to the argument that it basically

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The lawyer's responsibility, and I'm confining this to foreign speakers, not across the board, although I think that it exists across the board, to make it very clear when you're talking about prediction, it's a very dangerous thing to be talking about.

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Clients always want prediction, but it's very dangerous for the lawyer to get in there because of the inherent

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In this particular case, if you'll let me back up for a second, Mr. Zaitar had been in this country for... I got all the facts.

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I understand that.

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I'm trying to figure out what the doctrinal hold we're trying to fit this peg into.

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And the briefs are about ineffective assistance of counsel, and the opening briefs are about

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a promise.

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You seem to be withdrawing from the argument about a promise and instead saying the problem is a misunderstanding.

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So now my question is, what is effective?

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Does effective assistance of counsel have to mean that regardless of how much the lawyer did, if the defendant says he doesn't understand the lawyer has been ineffective, if the defendant says he doesn't understand later,

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after he's already accepted a plea in which he said he did understand.

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Well, this court has held repeatedly in almost all cases, in some of their mind, that a satisfactory Rule 11 plea trumps any claim thereafter.

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And in this case, I'm forced to admit that the Rule 11

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The rule of Evan colloquy was pristine.

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There was nothing wrong with it.

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Including with a translator.

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There was an interpreter at that aspect.

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But I think that it belies the reality of the entire equation, which is the context between attorney.

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In this case, there were multiple attorneys, the court might recall.

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The attorney employed some associates to speak in English without the benefit of an interpreter.

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The essence of it was an incredibly upbeat, optimistic kind of presentation in which Mr. Zeitar, after waiting, as the court says, as you're familiar, after waiting three, three and a half years, decided at the last minute on the relative eve of trial to plead guilty.

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So there must have been a game changer somewhere along the way.

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And I'm submitting to the court that the game changer was the attorney's

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inability in this case, which I couch as ineffectiveness, to communicate to Mr. Zachary that what he was talking about was crystal ballgazing.

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It's not the law.

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So what would an effective attorney have done?

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Say yourself.

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What would you have done?

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Mr. Colburn said that he repeatedly, every time he saw the person, told him there's no promise, can't guarantee this, up to the judge.

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What else should he have done?

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So that I measure what an effective counsel would have done, what else should have been done?

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I would say, and I would confine this only to a foreign speaking client whose language, whose original language is not English, that a document or letter be written that makes it very clear in his language

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that numbers you've talked about are just predictions only, and that there is no promise as to what the court... So that's exactly what the plea agreement, which was translated into Arabic, said.

[00:10:12] Speaker 04:
Exactly.

[00:10:13] Speaker 03:
Well, then the Rule 11 qualicoe, in your view, is going to... No, no, no, I'm asking... No, I think that... Is your view that the plea agreement is not good enough, signed by the defendant and the prosecutor and the defense counsel?

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I think the...

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The context of this situation, in the case of a foreign-speaking, foreign national, I think the judge was on spot on that, was that their expectations about the criminal justice system, they enter the equation with potentially quite different expectations.

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I have a cultural, not a language argument.

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Well, they're both.

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But I'm still asking about what it was.

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In an English-speaking country that had the criminal law practices that you're hooting to.

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Well, that's not.

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If I understand.

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If I understand.

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This is not a hostile question.

[00:11:03] Speaker 04:
No, no, no.

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I was just trying.

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There were English speaking countries where the tradition is quite different.

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Assuming an English speaking country with the sort of criminal law system that you're hypothesizing, the same failure of communication would be likely.

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Potentially.

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So you have a double whammy here.

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You've got the foreign language and the lack of familiarity and maybe, you know, I don't know how many legal systems he's seen where, I mean, it's easy to imagine that the problem here is that in plenty of places around this world when a lawyer says, OK, OK, OK, the judge is going to say this, and this is, you know, the judge is not a problemist, but

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Trust me, it's going to work out just fine.

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And then the overheager associate comes in and goes, oh, been friends with the judge for a long time.

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And so I think where the issue here is is.

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This is hypothetical.

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Yeah, yeah, yeah.

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But I think we can imagine how these some

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someone who's totally unfamiliar with the legal system that has this kind of integrity could misunderstand it.

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But then I think the question has to become in deciding whether there was ineffectiveness, sort of from whose perspective do we ask whether there was a promise.

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I think the lawyer didn't think he was making a promise, was making his best educated guess, trying to communicate the education and judgment and experience that he had, but knew better than to make a promise, and didn't do that.

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So from his perspective, there was no promise.

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And that seemed to be how the district court was looking at it.

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I take it your argument is from Mr. Zytar's, I'm sorry, did I say that right, Zytar?

[00:12:49] Speaker 04:
That's correct.

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Sorry, Zytar's perspective.

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those same words sound like a promise, either from his background, his language, or he didn't have the sophistication.

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And so the ineffectiveness is your ineffectiveness argument

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that the lawyer needs to be more sensitive, sort of the double whammy of language and culture.

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But then how is that administered as a matter of law?

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How does that opinion get written on ineffectiveness?

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I think I would suggest that from this point forward, and applying it to this case, that at least, and I'm confining this only to non-English speakers, because I think the

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the potential of confusion for the reasons that you've talked about are the greatest.

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In those kinds of cases, I would demand something more than just the Rule 11 colloquy with its legal terms.

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The question is, if a statement in the defendant's language saying that I have received no promises is not enough,

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You seem to be setting up a proposition that's not falsifiable.

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They're going to get it wrong no matter what is said.

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So, I mean, it almost ends up in a rule that...

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Well, I don't think it goes that far.

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I think you can never draft around subjective intent if some guy has expectations that are just unrealistic or not consistent with the reality of the situation.

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But what you can do is create an objective

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of what the lawyer said.

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Now lawyers aren't probably, myself included, are not that anxious to get into what we might have predicted and what we might have discussed.

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But sometimes that kind of discussion, especially if it changes the game,

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becomes very vital to the question of whether there was a true and honest communication to the client.

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Can I, I want to get back to the question of whether there was ineffective assistance here.

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And the first question is whether the advice or the assistance was not up to a reasonable standard of competence under Strickland, right?

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Your argument is that a reasonable standard requires, in a case of a foreign defendant, that the lawyer's prediction or statement itself be put in writing in the original language.

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Is that right?

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That's correct.

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Has any court ever said that?

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No.

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Has any bar association ever said that?

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Not that I'm aware of.

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Have you ever done that?

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You, have you personally ever done that as a lawyer?

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Yes.

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And is that, is your understanding that that is the standard of care in the community, that it is put in, that your predictions, not in the plea agreement, but separately, are put into writing in the foreign language, or you can't make a representation that way?

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No, I really can't, but... So if that's true,

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Then doesn't that end the first Strickland prong?

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The first prong of Strickland doesn't require that you anticipate what a court might later decide is the highest possible standard.

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It only asks for a competency standard.

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Well, I think that Strickland has interpreted over the years as a flexible standard.

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The standards change as to what lawyers should do and what lawyers shouldn't do.

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I'm not turning over the requirements of an attorney in terms of representation.

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I'm looking at a very, very narrow

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very narrow subset.

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I mean, and these are, it gets very difficult when we have defendants who speak, I don't know if I would call it a niche language, Bulgarian or Mandarin.

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We've pretty much gotten Spanish-speaking attorneys and things like that, languages we see all the time.

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But it's far different when we're talking about attorneys who have no idea what the interpreters are telling or saying literally.

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Why should we think that

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it would be more likely for the client to understand if the lawyer hands him some piece of paper with it written in secret, because that's an attorney-client communication.

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As compared to the public document of the plea agreement and the in court with the judge statement, has anybody promised you anything

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translated into Arabic and the answer, no.

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Why isn't that the right way?

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That is the way that the system normally works and why isn't that the way to guarantee this problem as best as possible?

[00:17:52] Speaker 04:
Well, the reason I think is if the client thinks either for language problems or for cultural reasons that he's going to be guaranteed a certain sentence or a certain deal, if you will, then to stand up in court and talk about that might well be in his mind undermining that deal.

[00:18:12] Speaker 04:
And that's why I think, and that's exactly what Zaitari testified to.

[00:18:16] Speaker 03:
That of course, that throws rule 11 out completely, because that applies in every case.

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In every case, a defendant could feel that his client has told him, his lawyer has told him, don't worry, I know the judge, it's all corrupt.

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And then when you go into rule 11, you say, no deals, no promises.

[00:18:37] Speaker 03:
And then we would say, well, that's no good, because that's something that happens in court, and there's no reason for clients to believe the court.

[00:18:45] Speaker 04:
Well, where we differ is I see this as a totally different situation when you're talking about the non-English speaking client.

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I think that that's a holy other, if you will.

[00:18:55] Speaker 04:
I see I've exceeded my time.

[00:18:57] Speaker 02:
Can I ask a quick, fat question?

[00:18:59] Speaker 02:
Sure.

[00:18:59] Speaker 02:
Do you know when your clients due to be released?

[00:19:02] Speaker 04:
not not that long and miss heller was uh... time is probably in four five months something like that i had we uh... yes i thought it was february fiftieth there might be i haven't checked it recently do you dispute that that would make this case because the consequences of conviction would do would have an effect on his ability to enter or re-enter the country

[00:19:26] Speaker 02:
I had, this was an argument not about innocence, but it was about the length of the sentence, right?

[00:19:34] Speaker 03:
Well, usually it would, he asked to withdraw his claim and get back.

[00:19:38] Speaker 03:
Well, where do we go from here?

[00:19:39] Speaker 03:
That's my question.

[00:19:41] Speaker 03:
If you win, he goes to trial, right?

[00:19:43] Speaker 03:
Potentially.

[00:19:44] Speaker 03:
Well.

[00:19:45] Speaker 03:
or it's or his little is previous lawyer said that you know case is an awful case and uh... uh... the government has no reason and not to take him to trial does he does your client understand that

[00:20:05] Speaker 03:
If he loses this appeal, he gets released in February.

[00:20:08] Speaker 03:
If he wins this appeal, he goes to trial, which certainly won't occur before February.

[00:20:14] Speaker 03:
And if he's convicted, he gets a sentence.

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Whatever the sentence is, it may well be longer.

[00:20:21] Speaker 03:
Does he fully understand that?

[00:20:23] Speaker 03:
I believe so, and he's instructed me to go forward on this matter.

[00:20:26] Speaker 03:
So the claim of the judge, the district court judge,

[00:20:30] Speaker 03:
that what he really wanted to do was to go home as soon as possible.

[00:20:34] Speaker 03:
That's what the district court followed, right?

[00:20:37] Speaker 03:
And that's what his previous lawyer said.

[00:20:39] Speaker 03:
He wants to go home to Lebanon as soon as he can.

[00:20:42] Speaker 03:
That's false.

[00:20:43] Speaker 03:
That must be false, because the way to get home as soon as possible is to lose this case, not to win this case.

[00:20:51] Speaker 04:
Well, I'm kind of doing a good job in that respect.

[00:20:58] Speaker 04:
I understand the problem, and if the court, to assist the court, if the court wants another inquiry made in appropriate language before a decision comes down.

[00:21:12] Speaker 03:
But part of it, even if there were ineffective assistance on the first Strickland problem, the second question is whether there's prejudice.

[00:21:20] Speaker 03:
And to get to the prejudice question, the standard question is, would he give up his plea agreement and go to trial?

[00:21:27] Speaker 03:
Is that really what he wants, right?

[00:21:29] Speaker 03:
And he has to show that that's really what he wants.

[00:21:31] Speaker 03:
And our normal test of whether that's really what he wants is, what's his underlying motivation?

[00:21:37] Speaker 03:
And among other things, what's the chances that he's going to go to jail for a longer period?

[00:21:42] Speaker 03:
Right now we know he's going to be released in February.

[00:21:45] Speaker 04:
Seems pretty risky.

[00:21:47] Speaker 04:
There is some risk in terms of the, he'll never be able to reenter this country with the conviction.

[00:21:53] Speaker 04:
He may have collateral consequences in terms of payment, in terms of other things.

[00:21:58] Speaker 04:
They're probably not that realistic.

[00:22:01] Speaker 03:
But that's not what, but his argument, his reason, your explanation of his reason is not that he doesn't, is not about conviction.

[00:22:09] Speaker 03:
It's about how long a sentence he's going to get.

[00:22:12] Speaker 03:
Isn't that right?

[00:22:15] Speaker 03:
Yes, yes, but it wasn't that he was trying to avoid conviction, it was that he wasn't making an argument about innocence, right?

[00:22:23] Speaker 03:
There's no misunderstanding about his position at the sentencing where he said he was guilty, right?

[00:22:32] Speaker 03:
No misunderstanding about that.

[00:22:35] Speaker 04:
What he said was what he said.

[00:22:36] Speaker 03:
There's no claim now that he really meant innocent when he used the word guilty or that somebody persuaded him to say he was guilty when he was really innocent.

[00:22:46] Speaker 03:
There's no argument about that.

[00:22:47] Speaker 04:
No.

[00:22:48] Speaker 04:
The claim is that he forfeited a valuable constitutional right unknowingly or by virtue of the representative.

[00:22:55] Speaker 03:
Because he thought he was going to get a smaller sentence than he actually got.

[00:22:58] Speaker 04:
That's obviously correct.

[00:22:59] Speaker 03:
Sure.

[00:23:01] Speaker 03:
OK.

[00:23:01] Speaker 03:
Further questions?

[00:23:03] Speaker ?:
Thank you.

[00:23:10] Speaker 01:
Good morning.

[00:23:11] Speaker 01:
May it please the court, I'm Kirby Heller from the United States.

[00:23:16] Speaker 01:
As Judge Barlin noted, this is a case about ineffective assistance of counsel.

[00:23:22] Speaker 01:
That's the claim.

[00:23:22] Speaker 01:
So of course, it is judged from the perspective of the attorney.

[00:23:26] Speaker 02:
Why is that?

[00:23:27] Speaker 02:
I'm just curious as to why we come up with a system that asks the lawyer, that looks from the lawyer's perspective as opposed to the whole idea is to protect the defendant.

[00:23:35] Speaker 02:
Why is it that we look from

[00:23:37] Speaker 02:
Why don't we factor in, at least, how a client would understand?

[00:23:43] Speaker 02:
I think we'd do that if the client was a five-year-old child.

[00:23:48] Speaker 02:
Would we all have the same reaction?

[00:23:50] Speaker 02:
Oh, yeah, don't worry, don't worry.

[00:23:52] Speaker 02:
I know I've got a lot of experience.

[00:23:53] Speaker 02:
Of course, it's not a promise.

[00:23:55] Speaker 02:
We'd all go, come on.

[00:23:57] Speaker 02:
And I'm not equating him to a five-year-old child.

[00:23:59] Speaker 02:
I'm just saying we factor in.

[00:24:00] Speaker 02:
We need to sometimes factor in.

[00:24:03] Speaker 02:
A lawyer has to factor in how the message is going to be received.

[00:24:07] Speaker 02:
And it seems to me to be a lot of the action in this case, someone who didn't speak the language and may not have been familiar with how our legal system works.

[00:24:16] Speaker 01:
I don't disagree, Your Honor, that the attorney, in determining whether he is giving effective representation, because that is the first prong of the Strickland test, should consider who he's talking to.

[00:24:28] Speaker 01:
So if, for example, an attorney was speaking to his client only in English and his client didn't understand it, and he said,

[00:24:37] Speaker 01:
This isn't a promise, but this is my prediction.

[00:24:40] Speaker 01:
And he knew that that was not going to be understood, or he said it in a way that was not going to be understood.

[00:24:45] Speaker 01:
That would be a factor in determining whether his performance was deficient.

[00:24:48] Speaker 01:
But we're still looking at whether his performance was deficient.

[00:24:52] Speaker 02:
Oh, yeah, no, I totally, yes, absolutely.

[00:24:53] Speaker 02:
I get that we look at that.

[00:24:54] Speaker 02:
But I guess it sounded to me from,

[00:24:56] Speaker 02:
the district court's analysis here, that the district court was not focusing, was focusing very much on what came out of the lawyer's mouth, and obviously the judge's mouth, at the rule 11 colloquium, for purposes of ineffectiveness, what came out of the lawyer's mouth, and not what was going into the client's ear.

[00:25:15] Speaker 02:
Was a mistake made in that regard, or not?

[00:25:17] Speaker 01:
Well, I think that that issue was actually focused on in the hearing,

[00:25:22] Speaker 01:
The attorneys testified not only to the fact that they repeatedly told him that this was not a promise, we don't know what the district court can do, we're not bound, we're optimistic, but also about

[00:25:37] Speaker 01:
their view of his understanding.

[00:25:39] Speaker 01:
In fact, they said, we don't know what's in his head, but everything that happened suggests or indicated to us that he understood.

[00:25:46] Speaker 01:
Of course, some of the discussions were... What did they have?

[00:25:49] Speaker 02:
So maybe I missed something in the record.

[00:25:50] Speaker 02:
What did they have that indicated, as opposed to going, uh-huh, uh-huh, uh-huh, which clients

[00:25:55] Speaker 02:
We forget how alien and scary the legal system is to people who aren't lawyers and are not familiar with it, let alone from a foreign land, but what did they have that showed that he got, he really got it when he was told

[00:26:11] Speaker 02:
You're exposed here.

[00:26:12] Speaker 02:
You're exposed to a lot higher.

[00:26:14] Speaker 01:
Well, there was testimony.

[00:26:16] Speaker 01:
You can look at the joint appendix at pages 86 and 88 by Mr. Coburn.

[00:26:20] Speaker 01:
First of all, talking about his English.

[00:26:21] Speaker 01:
His English was very good.

[00:26:22] Speaker 01:
My sense was he clearly understood me.

[00:26:25] Speaker 01:
He was unusually articulate.

[00:26:27] Speaker 01:
We had extensive conversations in English.

[00:26:30] Speaker 01:
He was very intelligent.

[00:26:31] Speaker 01:
He wasn't shy about sharing his views, often in English.

[00:26:34] Speaker 01:
It was clear that he understood what I was saying and what he was saying.

[00:26:38] Speaker 01:
He understood the guidelines.

[00:26:40] Speaker 01:
Mr. Lew testified to the same thing.

[00:26:42] Speaker 01:
The court even said, it's clear you've learned a lot more than English in your time here.

[00:26:48] Speaker 01:
So the attorney's perception was that he understood what he was saying.

[00:26:54] Speaker 01:
For example, another example, Mr. Lew said when he came back with the final agreement,

[00:27:01] Speaker 02:
Sorry, this is Mr. Coburn that you just were defining.

[00:27:05] Speaker 02:
That was Mr. Coburn.

[00:27:06] Speaker 02:
Because I know Mr. Liu is the one the district court credited.

[00:27:08] Speaker 02:
I'm sorry?

[00:27:09] Speaker 02:
Mr. Liu is the one district court found most credible, correct?

[00:27:14] Speaker 01:
Completely correct.

[00:27:14] Speaker 01:
Not the other way around.

[00:27:16] Speaker 01:
But Mr. Liu's testimony confirmed what Mr. Coburn had said so that he described how when the attorneys presented the final plea agreement to the defendant, he said,

[00:27:29] Speaker 01:
You know, can't you get an agreement to, I think it was 87 months?

[00:27:35] Speaker 01:
And Mr. Lewis said, no, they're not going to have that.

[00:27:39] Speaker 02:
With the negotiations with the U.S.

[00:27:41] Speaker 02:
Attorney's Office, though, right?

[00:27:44] Speaker 02:
You've got to plea agreement and you're trying to get him to accept it.

[00:27:47] Speaker 02:
That's different.

[00:27:49] Speaker 01:
Well, I guess my point is Mr. Liu is explaining the plea agreement.

[00:27:54] Speaker 01:
There's not just a passive uh-huh, uh-huh.

[00:27:56] Speaker 01:
The defendant is saying, can you get them to promise this?

[00:27:58] Speaker 01:
And Mr. Liu said, no, I can't.

[00:28:01] Speaker 01:
So all of this was discussed.

[00:28:02] Speaker 02:
No, I can't.

[00:28:02] Speaker 02:
But we think you're going to get even below that anyhow, got lots of experience with this judge, not to worry.

[00:28:10] Speaker 02:
Really, everyone else got below the guidelines range.

[00:28:13] Speaker 02:
Don't worry about what the US Attorney's Office is willing to agree to.

[00:28:18] Speaker 02:
And how is somebody who's not a lawyer supposed to weigh that in?

[00:28:22] Speaker 02:
Were those words said?

[00:28:23] Speaker 01:
No, I was going to say that was not the testimony from the attorneys.

[00:28:25] Speaker 01:
The attorneys said, we made it clear repeatedly, we can't promise.

[00:28:30] Speaker 01:
We're optimistic.

[00:28:31] Speaker 01:
We're going to make these arguments.

[00:28:32] Speaker 02:
No, that's what he did.

[00:28:33] Speaker 02:
Their optimism, I mean, optimism comes in words to lawyers.

[00:28:36] Speaker 01:
Well, and they testified that from where they sat, and that's all they could do, they believed that he understood that.

[00:28:43] Speaker 01:
And that's not ineffective.

[00:28:44] Speaker 05:
What do you make of the district judge's comment

[00:28:47] Speaker 05:
After years of experience with Mr. Zaitaris, the court's view of his testimony reflected that exaggerated representation of events, these exaggerations were not rooted in a truthfulness, rather a result of non-fluid English speaker attempting to emphasize his points and mature understanding in a foreign language.

[00:29:11] Speaker 05:
So that seems to be almost

[00:29:14] Speaker 05:
statement that Zaitar did not really understand what was going on.

[00:29:20] Speaker 01:
Well, again, that gets to the question of what did the attorneys do, and to the best of their ability, and how did he interpret that?

[00:29:28] Speaker 01:
They can't prevent him.

[00:29:30] Speaker 05:
No, undoubtedly.

[00:29:32] Speaker 05:
There's no foolproof system.

[00:29:36] Speaker 05:
I guess the only question, of course, this is the whole question of what the standard of representation is, whether

[00:29:46] Speaker 05:
under the circumstances, something more was suitable.

[00:29:52] Speaker 03:
I'm wondering whether this is an effectiveness question at this point, or just a straight voluntariness question.

[00:30:01] Speaker 03:
That is, the overarching question about manifest injustice has to be that somebody not knowing, not understanding, not voluntarily entered into a plea agreement.

[00:30:13] Speaker 03:
One way you show that

[00:30:15] Speaker 03:
is by showing ineffective assistance.

[00:30:18] Speaker 03:
The problem for the defendant here is the Strickland test is an objective test, expressly.

[00:30:23] Speaker 03:
That's what the Supreme Court said, not a subjective test.

[00:30:26] Speaker 03:
So the question really is what was said to the, under the circumstances, is what was said enough.

[00:30:32] Speaker 03:
But there is still an overarching question about voluntariness and about knowledge.

[00:30:37] Speaker 03:
And normally we ask that question in light of the Rule 11 colloquy.

[00:30:44] Speaker 03:
If we take the hypothetical and just expand it from what Judge Williams was saying, let's say everybody agreed that he was 100% certain he was getting 87 months or whatever it was, and that was it.

[00:30:55] Speaker 03:
Nothing else.

[00:30:57] Speaker 03:
And then he went in and pled with that understanding.

[00:31:02] Speaker 03:
That would make it an unknowing plea, wouldn't it?

[00:31:06] Speaker 01:
if the facts supported that.

[00:31:08] Speaker 01:
But what we have, of course, well, first of all, that's not the claim.

[00:31:11] Speaker 01:
But to answer your question, what we have is a Rule 11 colloquy that hasn't been challenged in any way and goes by the book.

[00:31:23] Speaker 02:
But what we've also got, as Judge Williams pointed out, is a district court finding that there's a guy who could speak language and had

[00:31:33] Speaker 02:
working ability in it, but didn't get the nuance at all, the exaggerations.

[00:31:39] Speaker 02:
It didn't quite, you know, didn't understand limitations within the language.

[00:31:45] Speaker 02:
That's the only way to understand that statement about his exaggeration, the communication details of it.

[00:31:52] Speaker 02:
And since this seems to be a case all about

[00:31:56] Speaker 02:
Not can you translate these words, but understanding the context, the framing, and the nuance and intonations that come with statements.

[00:32:07] Speaker 02:
Isn't that a problem?

[00:32:08] Speaker 01:
I'm not sure there's anything else you could have done in this case.

[00:32:11] Speaker 01:
You have a plea agreement that spells out exactly how the system works and that there's no promise of what the district court can do.

[00:32:19] Speaker 01:
That was translated.

[00:32:21] Speaker 01:
He signed it.

[00:32:22] Speaker 01:
He agreed that he had discussed it with his client.

[00:32:24] Speaker 01:
He understood it.

[00:32:25] Speaker 01:
He signed it.

[00:32:26] Speaker 01:
You have a Rule 11 colloquy with the same protections.

[00:32:29] Speaker 01:
An interpreter is there.

[00:32:30] Speaker 01:
The court questions him at every step of the way he understands.

[00:32:35] Speaker 01:
And in fact, there's one point that's kind of interesting in the Rule 11 colloquy, where he has a problem with something.

[00:32:41] Speaker 01:
And the proceedings stop.

[00:32:42] Speaker 01:
He discusses it with Mr. Coburn.

[00:32:44] Speaker 01:
They correct something that was in the stipulated facts.

[00:32:47] Speaker 01:
He's not passively sitting by and just saying, uh-huh, uh-huh, uh-huh.

[00:32:50] Speaker 01:
He is involved.

[00:32:51] Speaker 01:
He's understanding.

[00:32:52] Speaker 01:
But what about?

[00:32:54] Speaker 01:
And so there'd be really no other way to say that, despite everything that's on the record, he didn't get it.

[00:33:02] Speaker 01:
And of course, that hearing testimony in addition doesn't support that.

[00:33:06] Speaker 02:
So there's all these questions about whether the lawyers misgaged how their message would be received by him.

[00:33:12] Speaker 02:
But then there's also the separate question of these lawyers just completely missing the fact that the

[00:33:20] Speaker 02:
pre-sentencing report PSR was going to actually at argue for recommend a Much higher guidelines range by because it was going to factor in the drugs used by the other Defendants and relations, I guess They completely missed that didn't ever factor that in and it seems to me that

[00:33:43] Speaker 02:
Pretty clear that that is what had the upward pull on the district court heading to the top of the guidelines range here.

[00:33:52] Speaker 02:
Was that ineffective not to at least foresee that and deal with that?

[00:33:59] Speaker 01:
Two responses to that, Your Honor.

[00:34:01] Speaker 01:
First of all, I don't read the record in the same way to say that the PSR's guidelines, which the court did not then use, was the reason for the upward pull.

[00:34:12] Speaker 01:
These were very serious crimes.

[00:34:14] Speaker 01:
These were recorded conversations, negotiations with an undercover that involved 50 to 100 kilograms of cocaine and 50 kilograms of heroin.

[00:34:25] Speaker 01:
So this is a very serious event.

[00:34:27] Speaker 05:
That's in the basic conspiracy, right?

[00:34:29] Speaker 01:
Right.

[00:34:30] Speaker 05:
And- And PSR goes to a completely different conspiracy, as I understand it.

[00:34:34] Speaker 01:
Well, each of these co-defendants were involved in one was the cocaine case and one was the heroin case.

[00:34:40] Speaker 02:
Yeah, but they all got the low guidelines.

[00:34:42] Speaker 02:
That's the problem here.

[00:34:44] Speaker 02:
They all got the low guidelines even though they were engaged in serious offenses as well.

[00:34:49] Speaker 01:
But not as serious as this defendant.

[00:34:50] Speaker 01:
He was involved in both.

[00:34:52] Speaker 01:
No, I get that.

[00:34:52] Speaker 01:
And he was a leader.

[00:34:53] Speaker 01:
So I don't agree that it was the PSR's calculation of the guidelines that was the upward pull.

[00:34:59] Speaker 02:
Was it ineffective?

[00:35:00] Speaker 02:
So to set all this stuff up and saying, OK, there's going to be this PSR reprocess, court will have discretion, but not knowing going in that there is going to be a lot more, not warning him that unlike these other defendants, there was going to be a lot more action here that could push the court to the top of the guidelines range.

[00:35:19] Speaker 02:
And so without having factored in the pressure of, or even just the comparative measure a judge is going to make,

[00:35:27] Speaker 02:
in culpability between you and these other folks that it was wrong one not to deal with that.

[00:35:35] Speaker 02:
Did they challenge the PSR?

[00:35:37] Speaker 01:
They didn't.

[00:35:39] Speaker 01:
And then the government did.

[00:35:41] Speaker 01:
The government did.

[00:35:42] Speaker 01:
So how's that firm?

[00:35:44] Speaker 01:
But then they did.

[00:35:45] Speaker 01:
So they didn't initially.

[00:35:47] Speaker 01:
But then it was discussed at the first scheduled sentencing hearing.

[00:35:52] Speaker 01:
And defense counsel said, this is very serious.

[00:35:55] Speaker 01:
Can we brief it?

[00:35:55] Speaker 01:
So then there was briefing on it.

[00:35:57] Speaker 01:
And then there was discussion of it.

[00:35:58] Speaker 01:
And the court ultimately said,

[00:36:01] Speaker 01:
I'm going to use the guidelines range that the parties agreed to.

[00:36:06] Speaker 01:
The second fact, though, is that this was not, this was, according to the court, a novel issue.

[00:36:13] Speaker 01:
And the novel issue was this.

[00:36:15] Speaker 01:
The question wasn't just relevant conduct.

[00:36:17] Speaker 01:
The question is the government entered into an agreement with each of these co-conspirators, again, to a stipulated guidelines range.

[00:36:24] Speaker 01:
And that's what they agreed, that's what they pleaded to at their Rule 11 colloquies.

[00:36:31] Speaker 01:
Could the court use what they said in calculating this defendant's guidelines range?

[00:36:40] Speaker 01:
And the court said, this is a novel issue.

[00:36:42] Speaker 01:
I've never seen this before.

[00:36:43] Speaker 01:
So it's hard to see that that could be a deficient performance when, even according to the court, this is something that hasn't come up.

[00:36:52] Speaker 01:
But then, of course, the court said,

[00:36:54] Speaker 01:
I'm not going there.

[00:36:55] Speaker 01:
I think what's a fair sentence is what the party – something within the range that the parties agreed to, and that's what I'm going to give the defendant.

[00:37:03] Speaker 02:
It's February 15th, Your Honor.

[00:37:06] Speaker 01:
And Mr. Sussman, I have discussed this.

[00:37:09] Speaker 01:
And as we said, one must be careful what one wishes for.

[00:37:14] Speaker 01:
Okay.

[00:37:17] Speaker 01:
Thank you.

[00:37:19] Speaker 03:
Mr. Sussman, I'll give you another two minutes.

[00:37:25] Speaker 03:
All right, we'll take the matter under submission.

[00:37:27] Speaker 03:
Mr. Sussman, you were appointed by the court.

[00:37:28] Speaker 03:
We're grateful for your service.