[00:00:00] Speaker 03: Case number 14-3091, United States of America versus David Viner, appellant. [00:00:08] Speaker 03: Ms. [00:00:08] Speaker 03: Rowland for the appellant, Mr. Sable for the athlete. [00:00:12] Speaker 04: Good morning. [00:00:13] Speaker 05: Mr. Viner was charged and convicted under the wrong statute. [00:00:22] Speaker 05: Section 1543 addresses the conduct that he admitted, which is altering a passport. [00:00:28] Speaker 05: And that section applies to any passport, whether or not it's valid and unexpired. [00:00:35] Speaker 05: Congress did not include passports in 1546 for a few reasons. [00:00:41] Speaker 05: They didn't include it along with visas, work permits, border crossing cards, and alien registration cards, because the previous four statutes, [00:00:50] Speaker 05: specifically addressed passport misconduct. [00:00:53] Speaker 02: In fact, 1546 is the only statute in that section that does not address passports. [00:01:25] Speaker 05: Section 1543 penalizes making Forge and Calingfittering altering any passport. [00:01:38] Speaker 02: Yeah, but that's not possession. [00:01:48] Speaker 05: What Mr. Viner did, what he admitted to doing was inserting his own photograph into a passport, which is altering a passport. [00:02:05] Speaker 05: If you look at [00:02:06] Speaker 05: eight USC 1182, you'll see, which is included in our addendum to our brief, you'll see that Congress refers to visas, border crossing cards, and the like as entry documents. [00:02:20] Speaker 05: And they separately refer to passports as identity and nationality documents. [00:02:29] Speaker 05: In 1546, they refer to, it refers to documents that are prescribed [00:02:36] Speaker 05: by statute or regulation for entry or stay in the United States. [00:02:40] Speaker 02: Again, I want to get back to the statement of offense on page two paragraph four says that he admits to possession of the passport. [00:02:53] Speaker 02: I'm just trying to get to your, I get that these other statutory provisions mention passports and it certainly is [00:03:00] Speaker 02: You know, interesting that 1546 is not, but I didn't see any of those other ones providing a basis for a conviction for possession, which I think is what the statement of offense says is going on here. [00:03:18] Speaker 05: Well, be that as it may, 1546 argument still does not apply. [00:03:25] Speaker 05: And certainly the offense that he admitted [00:03:29] Speaker 05: at the guilty plea falls under 1543. [00:03:32] Speaker 05: I agree that this does not include possession. [00:03:41] Speaker 02: Either way, you have a statutory argument here. [00:03:45] Speaker 02: It all has to go through the lens of ineffective assistance of counsel. [00:03:49] Speaker 02: Correct. [00:03:49] Speaker 02: And so given the ambiguities we've already been discussing, [00:03:55] Speaker 02: How could it be in effect, given the event of circuit precedent, how could it have been ineffective for his counsel not to have raised this issue? [00:04:06] Speaker 05: Because the statute very clearly does not include passports, and it is included in a group of statutes addressing passports and visas, all of which address passports except this one. [00:04:19] Speaker 05: Okay, and you're very clearly, why is it [00:04:23] Speaker 02: other document prescribed by statute or regulation for injury. [00:04:28] Speaker 05: Do you mind if I comment on your first question further? [00:04:32] Speaker 05: the uh... i think that council could have looked at the case at the springboard case compost serrano which supports our argument that was a difference that you had to be required for entry the statute that issue here doesn't have that yes but the analysis in compost serrano supports our argument for example the court there supposed that i n s allowed presentation of a driver's license at the border [00:04:59] Speaker 05: and said that a driver's license, that would not change the nature of a driver's license into an entry document. [00:05:07] Speaker 05: It would still be a license designed to permit the person to drive. [00:05:12] Speaker 05: And passports are of the same ilk. [00:05:14] Speaker 02: Passports have a statutory status as being a document prescribed by a statute or regulation for entry into the United States. [00:05:23] Speaker 02: I don't think a driver's license does, does it? [00:05:25] Speaker 05: Passports are [00:05:27] Speaker 05: identity and nationality documents. [00:05:31] Speaker 05: I was looking at Black's Law Dictionary last night, and one of the definitions of prescribed is to establish or create. [00:05:41] Speaker 05: Our statutes and laws [00:05:43] Speaker 05: establish documents such as visa permits and border crossing cards. [00:05:47] Speaker 05: They don't establish foreign passports. [00:05:51] Speaker 05: Those are issued by foreign governments for the purpose of identity and nationality, not for the purpose of entry into the United States. [00:05:59] Speaker 02: What do you do then with AUSC 1181, which seems to be a statute that makes having a passport for an immigrant [00:06:08] Speaker 02: passport, a requirement for admission. [00:06:11] Speaker 05: But it also defines that passports as identity and nationality documents, not as entry documents. [00:06:22] Speaker 02: The statute, I mean all we need is a statute that says this is a document prescribed for entry. [00:06:31] Speaker 05: Well, my point is that it's not prescribed for entry. [00:06:34] Speaker 02: And 1181 does not prescribe it because [00:06:37] Speaker 05: because foreign passports are not documents that the United States creates to allow for entry or stay into the United States. [00:06:48] Speaker 05: A visa is a document that is created by the United States to allow a person to enter [00:06:59] Speaker 05: or stay in the United States, and the passport is the document that identifies that you are the person who has permission to enter or stay in the United States. [00:07:10] Speaker 02: It's an identity document. [00:07:12] Speaker 02: Are a lot of visas stamped directly into passports? [00:07:15] Speaker 05: Yes. [00:07:16] Speaker 02: So you can't really, in many circumstances, have a visa without a passport. [00:07:21] Speaker 05: No, you can. [00:07:23] Speaker 05: I traveled to India recently, and the visa was not in the passport. [00:07:27] Speaker 02: It's a separate piece of paper. [00:07:28] Speaker 02: But in many circumstances, it's stamped into it. [00:07:31] Speaker 05: Yes, in many circumstances. [00:07:32] Speaker 05: For many countries, it is. [00:07:33] Speaker 02: Do we know in this record, because I've only seen the cover page, whether there were visas stamped into this passport? [00:07:40] Speaker 05: Yes, into this Albanian passport. [00:07:45] Speaker 05: Even if passports are included. [00:07:47] Speaker 02: If you have a visa, [00:07:50] Speaker 02: stamped into a passport and the passport is fraudulent. [00:07:55] Speaker 02: Doesn't that make the visa necessarily fraudulent as well? [00:08:02] Speaker 05: if the if he has to use it the visa could be legitimately issued to a person but then the passport is identifying the wrong person as the person who is entitled to the visa separate uh... i think it's very clear from the statutes that they didn't want it separate out [00:08:30] Speaker 05: entry documents such as border crossing cards visas and passports that are issued by foreign governments even if we're wrong about fifteen forty six and it does include passports then you have to be using that definition of prescribed uh... you have to look at what's written in what's written and the statutes eight u s c [00:08:58] Speaker 05: Section 1181 and 82 is that the passport has to be valid and unexpired. [00:09:06] Speaker 05: And I think that very provision sort of illustrates that 1546 is not the right statute for a case like this. [00:09:16] Speaker 05: 1543 is. [00:09:17] Speaker 05: 1543 does not require that the passport be valid or unexpired. [00:09:24] Speaker 05: It can just be any passport. [00:09:26] Speaker 05: But here, under 1546, it has to be a valid passport and an unexpired passport, and this passport was not unexpired. [00:09:37] Speaker 05: So for that reason, also, it wouldn't fall under 1546. [00:09:40] Speaker 05: But I really think the more important point there is that it's more evidence that this kind of conduct does not fall under 1546. [00:09:55] Speaker 05: Certainly serving a sentence for a crime that you didn't commit is by definition prejudicial. [00:09:59] Speaker 05: And we ask the court to vacate Mr. Biner's conviction. [00:10:04] Speaker 05: If the government wants to indict him using a different statute, it can do so. [00:10:08] Speaker 02: Do you have authority for it being per se prejudicial when there is no circuit authority? [00:10:19] Speaker 02: that it's not the proper crime when in fact there's adverse circuit, only adverse circuit. [00:10:25] Speaker 05: I think that that would not go to prejudice. [00:10:27] Speaker 05: That would go to whether counsel's representation fell below an objective standard of reasonableness. [00:10:35] Speaker 02: Imagine if every circuit in the country has ruled against your argument and counsel says, [00:10:43] Speaker 02: Hey, there's this argument here, nobody's buying it, except they started worrying, so that one hasn't, no one's buying it. [00:10:51] Speaker 02: But, you know, if you don't take it, it's not working. [00:10:55] Speaker 02: I don't even think it's that good an argument. [00:10:57] Speaker 02: But, and if you resist, then you're going to lose this plea. [00:11:03] Speaker 02: They're not going to give it to you, and you're going to be facing a much more severe sentence. [00:11:09] Speaker 02: And, but, you know, so again, it could be that some court at some point will take it and decide it's not a crime. [00:11:14] Speaker 02: I can't guarantee that, but it sure seems like a, [00:11:16] Speaker 02: a moonshot to me. [00:11:18] Speaker 02: That's inherently prejudicial. [00:11:19] Speaker 02: It turns out the counsel is wrong on the statutory interpretation issue. [00:11:24] Speaker 05: The court's hypothetical includes facts that aren't established here, so certainly we would need a remand to determine if that was counsel's analysis that he would lose the claim. [00:11:34] Speaker 02: No, I'm talking about your inherent prejudice. [00:11:36] Speaker 02: I thought your rule was that as long as the issue is whether or not the crime, there's even a crime that [00:11:41] Speaker 02: the charged crime encompasses the conduct, it's per se prejudicial. [00:11:45] Speaker 02: And I'm saying, I'm not sure why that type of argument would inherently be. [00:11:49] Speaker 05: Because being convicted of a crime that you didn't commit is inherently prejudicial. [00:11:55] Speaker 05: And if counsel had some strategic reason, [00:12:00] Speaker 05: that he discussed with the client about why he should plead guilty to something that he didn't commit. [00:12:08] Speaker 05: I suppose that would come out at a hearing, although I think I would still argue that counsel has a duty as an officer of the court not to allow someone to plead guilty to an offense for which they're not guilty. [00:12:24] Speaker 05: And certainly, [00:12:28] Speaker 04: Well, that's sort of an interesting proposition, isn't it, given how pleas are handled. [00:12:34] Speaker 04: Let me ask you just one other quick question. [00:12:36] Speaker 04: You haven't mentioned the regulations at all in your analysis of 1546. [00:12:40] Speaker 05: The regulations are included in our appendix. [00:12:51] Speaker 04: What I'm focusing on is the 60-day requirement. [00:12:55] Speaker 04: You say a passport is simply an identity document [00:12:58] Speaker 04: It has nothing to do with entry, and yet under the regulations, you have to have a foreign passport that's valid for at least 60 days in order to get into this country so that there's somewhere for you to go after your visa expires. [00:13:16] Speaker 04: What do you do with that regulation? [00:13:23] Speaker 05: I assume that that regulation sort of tracks [00:13:27] Speaker 05: just passport renewal that, you know, in our country and I think in other countries, passport isn't good for life. [00:13:37] Speaker 05: It's not an identity document for life. [00:13:40] Speaker 04: It has to be renewed. [00:13:41] Speaker 04: When you went to India, didn't you have to have a passport that was valid for six months? [00:13:48] Speaker 04: That's right. [00:13:48] Speaker 04: Yes. [00:13:49] Speaker 04: So what the regulation says is that if you want to come into this country, [00:13:55] Speaker 04: you have to have a foreign passport or some other type of document. [00:13:59] Speaker 00: That's right. [00:14:00] Speaker 04: So what do you do with that in terms of the foreign passport being more than simply an identity document? [00:14:11] Speaker 05: I think that that requirement is simply a requirement that people renew their identity documents, just like we renew our driver's license. [00:14:21] Speaker 04: If you can't get into this country. [00:14:23] Speaker 05: Right, because you haven't renewed it. [00:14:26] Speaker 04: Well, you don't have a foreign passport that's valid for 60 days. [00:14:31] Speaker 04: So to that extent, doesn't it become part of the entry requirement? [00:14:38] Speaker 04: I'm just asking the question since it seems to me that's what the language of the regulation says, but you may have a good response. [00:14:45] Speaker 05: Well, I think they don't want you to be in the country entering or having an authorized stay if your passport is expired. [00:14:57] Speaker 05: you know, a tourist visa, any other, most of these entry documents do give you either 30 days or longer to be in the country. [00:15:09] Speaker 05: So they don't want you to be here and suddenly have an expired identity document. [00:15:15] Speaker 05: It doesn't prove your identity, I suppose, if it's expired. [00:15:19] Speaker 04: All right, why don't we hear from Council for... Thank you. [00:15:32] Speaker 04: Good morning. [00:15:32] Speaker 00: Good morning. [00:15:33] Speaker 00: May it please the court, David Sable on behalf of the United States. [00:15:37] Speaker 00: Appellant cannot demonstrate he received ineffective assistance of counsel. [00:15:44] Speaker 00: Judge Millett, with response to your questions, the offense conduct to which appellant pled was possession. [00:15:52] Speaker 00: It was not use. [00:15:53] Speaker 00: It was not altering. [00:15:54] Speaker 00: It was not counterfeiting, although there was abundant circumstantial evidence that he's the one that had altered the document. [00:16:00] Speaker 00: It was possession. [00:16:01] Speaker 00: The offense conduct here did not fall under any of the other provisions. [00:16:05] Speaker 00: It was possession, just as in Ramon, where World Trade Center terrorists were caught in this country with forged Nicaraguan passports, just as in Osemi, where the defendant was caught with a forged Nigerian passport. [00:16:21] Speaker 00: Here, again, not a terrorist incident, but again, this is a person who's in the country with an altered foreign diplomatic passport. [00:16:30] Speaker 00: That is a document that is prescribed by statute and regulation for entry into the United States. [00:16:37] Speaker 00: And that's why the only two courts of appeals that had addressed this question at the time of the plea said, even strictly construing the statute, a foreign passport fell within the plain meaning of 1546. [00:16:49] Speaker 04: So you're relying on both 1181 and the regulations promulgated under 1181? [00:17:00] Speaker 00: Yes, Your Honor. [00:17:02] Speaker 04: So you have to track that path. [00:17:03] Speaker 04: I just want to be clear what the path is. [00:17:05] Speaker 00: So I have 1181, which we've already talked about today, and then 8 CFR 211.2a, and 8 CFR 212.1. [00:17:15] Speaker 00: The .2 is the key one I'm focusing on. [00:17:21] Speaker 04: That's the 60-day. [00:17:22] Speaker 00: Right. [00:17:23] Speaker 00: That says that an immigrant needs a passport, and then [00:17:27] Speaker 00: 212.1 says non-immigrant alien needs a valid unexpired visa and an unexpired passport. [00:17:33] Speaker 04: I mean, what's interesting about this sort of statutory construct is that you almost have to weave a web to go through all the regulations, all the statutes that might apply to some document that's covered by 1546. [00:17:48] Speaker 04: And it's sort of interesting that Congress decided to write the statute that way. [00:17:55] Speaker 00: I'm not sure you have to go that far, Your Honor. [00:17:57] Speaker 04: Well, that's why I asked you. [00:17:58] Speaker 00: Because, I mean, you certainly say immigration-related documents. [00:18:03] Speaker 00: In most cases, it's going to be a visa and a foreign passport for a non-immigrant or an immigrant coming into this country. [00:18:10] Speaker 00: And even in the case that the Council's relying on from the Ninth Circuit, they construed these documents to be immigration-related documents. [00:18:17] Speaker 02: I think that's the given that it seems so obvious. [00:18:21] Speaker 02: It must include passports. [00:18:22] Speaker 02: It is passing strange that Congress left it out having just used passport in all the surrounding provisions. [00:18:28] Speaker 02: What are we to make of that? [00:18:30] Speaker 00: Well, that's what the Ninth Circuit said. [00:18:32] Speaker 00: And with respect to a US passport, they said, well, that strongly suggests that they weren't considering US passports in this case. [00:18:41] Speaker 00: But they also said that these are immigration-related documents. [00:18:47] Speaker 00: We know that in this case. [00:18:49] Speaker 02: What's different about a foreign passport is that it's not an immigration document issued by the United States government. [00:18:57] Speaker 02: And everything else. [00:18:58] Speaker 02: I believe everything else on that list is. [00:19:02] Speaker 00: Right. [00:19:03] Speaker 00: By the same token, your honor, had Congress wanted to say, this provision applies to US government issued documents, they could have said that. [00:19:10] Speaker 00: They didn't say that. [00:19:12] Speaker 00: So I think what we have is- Well, we have the cannons of statutory construction. [00:19:16] Speaker 02: Words are known by the company they keep, or you look for what's common in a list. [00:19:20] Speaker 02: And what's common in that list is that they're all issued by the US government. [00:19:25] Speaker 02: And we're not for the fact that there are all these provisions, neighboring provisions, that use passport. [00:19:32] Speaker 02: And it's omitted here. [00:19:35] Speaker 02: Maybe that wouldn't be enough, but Congress surely had to have thought about it. [00:19:39] Speaker 02: That's where the friggin' visa goes, right? [00:19:42] Speaker 02: A lot of times, at least the visa's there, or the paper gets stuck in the passport, even if it's a separate paper. [00:19:47] Speaker 02: So it just seems almost calculated that Congress left the passport out. [00:19:53] Speaker 00: Well, I guess what happened was in 1986, there were some cases prior to 1986 in which there were documents that were immigration-related documents that were not necessarily required. [00:20:06] Speaker 00: And so Congress wanted to expand it, and they changed required to prescribed by statute or regulation. [00:20:11] Speaker 00: So even if a defendant wasn't required, it was prescribed. [00:20:17] Speaker 02: Was there any case before the amendment where it had been held to include a passport so Congress would have [00:20:23] Speaker 00: Yes there is one and there is the one of the cases that pertained to a Colombian passport and it was one of the three cases it's not this not Campo Serrano but it's a circuit case. [00:20:53] Speaker 02: If it's in your briefs, I'll find it, but just your representation is there was a case before the amendment that held that old, stricter language included foreign passports? [00:21:05] Speaker 00: So, Your Honor, it's Rostrepo Grande. [00:21:08] Speaker 00: It's on page 11 of the government's brief. [00:21:10] Speaker 00: It's a Fifth Circuit case. [00:21:13] Speaker 00: The Fifth Circuit held that possession of a U.S. [00:21:16] Speaker 00: visa issued to a third party was punishable under 1546 and suggested that it would not apply to a passport that violated the statute. [00:21:26] Speaker 02: So that's the backdrop against which Congress enacted this? [00:21:28] Speaker 00: That was one of the three cases against which Congress changed the law. [00:21:34] Speaker 00: That's correct. [00:21:35] Speaker 02: And they didn't do anything to clarify the status of passports? [00:21:41] Speaker 00: They didn't add the word passport expressly. [00:21:44] Speaker 00: But the two cases that came immediately thereafter in 1993 and around 2000, 2001, both said that passports fell within plain meaning. [00:21:54] Speaker 00: And those two circuits [00:21:56] Speaker 00: conducted a close analysis. [00:21:58] Speaker 00: They looked at the statutes. [00:21:59] Speaker 00: They looked at the regulations. [00:22:01] Speaker 00: And again, they didn't go into the subsidiary principles of interpretation that the court is pointing to because they found that, strictly construed, the statute nonetheless applies plainly to foreign-issued passports. [00:22:13] Speaker 02: Well, Restrepo Grande adopted the issued by the US rule because it said the visa was issued by the US, and that's what was critical there. [00:22:22] Speaker 02: So going into this amendment, [00:22:25] Speaker 02: The cases were holding that it applied to documents issued by the U.S. [00:22:30] Speaker 00: government. [00:22:34] Speaker 00: I would have to look back at the case on that, Your Honor. [00:22:37] Speaker 02: Well, how does the rule of lenity factor in here, given the complications that we've noted with the statutory text? [00:22:45] Speaker 00: Well, we would submit, again, that the rule of lenity certainly would apply. [00:22:49] Speaker 00: The statutes need to be strictly construed. [00:22:51] Speaker 00: They're criminal statutes. [00:22:52] Speaker 00: But where the plain meaning makes clear that the statute does apply to foreign-issued passports or immigration-related documents, they're plainly stated in the statute. [00:23:05] Speaker 00: Maybe a little bit efficient, but not too much. [00:23:07] Speaker 02: It's a little hard to keep saying plain when now at least another circuit has said it's not plain at all. [00:23:12] Speaker 02: And in fact, they're not in there. [00:23:14] Speaker 00: Well, just to be clear, so the Ninth Circuit has said, just this year, they said, with respect to you, that's a case where a US citizen with a US passport with offense conduct that was captured by another statute because he used the passport to do something. [00:23:29] Speaker 00: That's not our case. [00:23:31] Speaker 00: And they said, based on these subsidiary canons of construction, these are immigration-related documents. [00:23:37] Speaker 00: And a US passport is not a document that an immigrant or a non-immigrant coming into this country is going to use as immigration-related documents. [00:23:44] Speaker 00: None of those points apply in this case. [00:23:47] Speaker 00: They did point out, hey, you know, 1546... If I come in from abroad, is my U.S. [00:23:53] Speaker 02: passport not considered an immigration-related document? [00:23:56] Speaker 02: It's what's been coming in? [00:23:58] Speaker 02: Fraudulent U.S. [00:23:59] Speaker 02: passports made in foreign countries, really? [00:24:02] Speaker 00: When you're returning to this country, you're not immigrating into the country. [00:24:05] Speaker 02: People may use them, right? [00:24:07] Speaker 02: Fraudulent ones. [00:24:08] Speaker 02: I'm not sure why – are you suggesting there's a different role for U.S. [00:24:11] Speaker 02: and foreign passports? [00:24:13] Speaker 00: I'm saying that as – the Thompson analysis suggests that the 1546 – Is that your – is that U.S. [00:24:19] Speaker 02: government position? [00:24:20] Speaker 00: I'm sorry, ma'am. [00:24:21] Speaker 02: Is that the U.S. [00:24:22] Speaker 02: government position? [00:24:23] Speaker 02: If someone overseas makes up a fraudulent U.S. [00:24:26] Speaker 02: passport and uses that, that it wouldn't be covered by 1546? [00:24:30] Speaker 02: Is that the U.S. [00:24:30] Speaker 02: government's position? [00:24:32] Speaker 00: No, that is not our position. [00:24:34] Speaker 00: Our position is that 1546 would capture a U.S. [00:24:37] Speaker 00: passport. [00:24:37] Speaker 00: The Ninth Circuit is an outlier case. [00:24:40] Speaker 00: It didn't even address Rahman, did not address OCME, but it is limited – I would suggest it's limited to its facts, where it's a U.S. [00:24:48] Speaker 02: – the analysis turns on – Yeah, the statute doesn't say for immigration. [00:24:51] Speaker 02: It says for entry. [00:24:53] Speaker 00: This is the Ninth Circuit. [00:24:54] Speaker 00: The Ninth Circuit looked at the position of the statute and said, these 1546 is immigration-related documents. [00:25:00] Speaker 00: And that's why they turned, they concluded that US passports were not included. [00:25:05] Speaker 00: But again, Your Honor, you asked a question earlier. [00:25:08] Speaker 00: I wanted to return to it, if I may, which is that we have to look at this through the lens of the ineffective assistance statute law. [00:25:15] Speaker 00: At the time defendant Pellin entered his plea, the only decisional law, [00:25:21] Speaker 00: only decisional law available were two circuits who held that foreign-issued passports fell within the plain meaning of the statute. [00:25:29] Speaker 00: Surely, this is a good plea offer. [00:25:31] Speaker 00: He got less than a year. [00:25:33] Speaker 00: He had another provision which was dropped, which was a mandatory two-year consecutive term of incarceration. [00:25:40] Speaker 00: And so by pleading to this provision, [00:25:44] Speaker 00: He got less than a year. [00:25:46] Speaker 00: And certainly that council exercised, his judgment fell within the wide range of reasonable assistance. [00:25:53] Speaker 02: Well, do you have an argument, not about the defendant's conduct, but about whether the charge is a crime at all? [00:26:02] Speaker 02: whether this is a crime that exists under that statute at all. [00:26:06] Speaker 02: And there's a colorable argument. [00:26:08] Speaker 02: Shouldn't attorneys have to raise that issue with their clients? [00:26:12] Speaker 02: It just might not be a crime at all. [00:26:14] Speaker 02: There's a colorable argument. [00:26:15] Speaker 02: There's no precedent in this circuit. [00:26:18] Speaker 02: Shouldn't that just be a very good rule for attorneys? [00:26:21] Speaker 00: Well, we don't know exactly what happened, because we don't have any facts. [00:26:25] Speaker 00: The record is not developed. [00:26:26] Speaker 00: But what we do know is that [00:26:33] Speaker 00: I would say, Your Honor, that this is something that should be explored. [00:26:36] Speaker 00: But certainly, this is a point where there was no reason to think this was going to be a winning argument. [00:26:43] Speaker 00: Had he declined the plea and lost, then he would have been subject to a mandatory two-year term. [00:26:53] Speaker 02: It was a poor question, almost like Padilla, about whether you need to raise the issues so the client can make an informed decision about what [00:26:59] Speaker 02: they're being charged with was a crime at all on the U.S. [00:27:03] Speaker 02: statutes. [00:27:03] Speaker 02: And so it's not that he would have had to say no, but that you really have to inform them of this type of issue. [00:27:10] Speaker 02: It's just not a crime. [00:27:12] Speaker 02: There's no possession of a passport crime on the books. [00:27:18] Speaker 02: So you have to show, now I don't, you can say all, the council here, she can say all the things you're [00:27:22] Speaker 00: I understand what the court is saying, but bear in mind that Strickland counsels us that we're not to look at this through the lens of hindsight. [00:27:36] Speaker 00: At the time, in 2014, when he entered this plea, there was no reason [00:27:40] Speaker 00: for counsel to say, hey, you have a colorable, maybe not a good, but a colorable claim that this doesn't qualify as a crime under 1546. [00:27:49] Speaker 00: Where is the law that would have pointed him in that direction? [00:27:52] Speaker 00: There is none. [00:27:54] Speaker 00: And so what would be the reason for him to reject a plea on that basis? [00:27:58] Speaker 00: That's speculation. [00:28:00] Speaker 00: And we point it. [00:28:02] Speaker 02: That's regulation. [00:28:03] Speaker 02: It's an argument that has worked now in one circuit about, it's not a frivolous argument. [00:28:08] Speaker 00: Well, you know that now, Your Honor. [00:28:10] Speaker 00: But how would Mr. Sullivan have known that then? [00:28:13] Speaker 04: Because you could look at the circuit and see when it applies a rule of lenity, when it strictly construes. [00:28:22] Speaker 04: And you've made a lot of concessions here this morning that surprised me a little bit. [00:28:26] Speaker 04: I mean, I know you keep saying 1546A is clear. [00:28:30] Speaker 04: on its face. [00:28:33] Speaker 04: But in answer to my earlier question, you acknowledged you've got to go through 1181 and the regulations to get there. [00:28:44] Speaker 04: So you said that we must strictly construe criminal statutes, counsels, briefs, cites all those cases from other circuits, basically say that cite a Supreme Court case [00:28:55] Speaker 04: So where issues are open. [00:28:58] Speaker 04: But I'm not suggesting that we're in the process of second guessing or applying hindsight. [00:29:06] Speaker 04: But the question is, what was the colloquy that went on, if any, between counsel and his client along the lines that Judge Millett is raising? [00:29:15] Speaker 04: And all that, we have a silent record. [00:29:17] Speaker 04: And the question is, were this court to conclude that counsel's failure [00:29:24] Speaker 04: to advise his client that it was an open question in this circuit and that it wasn't clear unless you dug down into the regulations that this could be a crime. [00:29:38] Speaker 04: So it was unclear what might happen. [00:29:41] Speaker 04: Then wouldn't we have to send it back for hearings? [00:29:47] Speaker 00: Yes. [00:29:49] Speaker 00: All right. [00:29:49] Speaker 00: Well, that's assuming that there is still the deficiency issue which provides that even if counsel did miss the point that nonetheless his it fell within the wide range of reasonable assistance. [00:30:05] Speaker 00: And we we cited a number of cases to the court for that proposition. [00:30:08] Speaker 04: But if the court did not was not convinced by that, we would have to know what the record says. [00:30:13] Speaker 04: I mean, counsel may have given his client a lot of good reasons for entering this plea, but we don't know any of that. [00:30:19] Speaker 04: And suppose he didn't. [00:30:21] Speaker 00: If the court concludes that this is not a crime under the statute, and if the court concludes that counsel somehow should have divined that fact and his failure to do so. [00:30:30] Speaker 04: No, I don't think that's what we're saying. [00:30:31] Speaker 04: That's what I'm trying to understand, precisely what the government's position is here. [00:30:39] Speaker 04: Really, this question is at the first prong of Strickland. [00:30:44] Speaker 04: And what was counsel's obligation to his client? [00:30:54] Speaker 00: If I understand what the court is asking. [00:30:56] Speaker 04: In other words, answering that question doesn't necessarily require a court to hold, comma, does it, question mark, that 1546A does not clearly cover [00:31:15] Speaker 04: possession of an altered foreign diplomatic passport? [00:31:28] Speaker 00: If I understand the court's question, [00:31:30] Speaker 00: A remand for development of the record would only be appropriate if this court concluded, A, that the statute did not cover the offense conduct in the colloquy, and B, that the conduct here without more [00:31:55] Speaker 00: does not fall within the wide range of reasonable assistance, although it could if the record were developed. [00:32:00] Speaker 00: But on these facts, the court simply can't conclude that the failure to raise that is not deficient. [00:32:08] Speaker 00: We submit that on either of those grounds, this court could decide the case, either that this is a crime under 1546 or that the court need not decide that because given the state of the law at the time, [00:32:25] Speaker 00: A failure to raise that issue would be, assuming the proffer from appellant, would still nonetheless fall within the wide range of professional assistance. [00:32:35] Speaker 02: You put a lot of weight on the state of the law at the time, which is perfectly understandable because that's the time frame and issue here. [00:32:42] Speaker 02: If someone were presented with this plea today, [00:32:49] Speaker 02: and you agree that, at least today, now that there's a circuit conflict, it would be incumbent on competent counsel to at least raise the issue with the client, and still recommend, look, this is a great deal for X, Y, and Z reasons, or the majority of circuits is the way it's going to go, but given the circuit, when there's a circuit conflict, they have to at least raise [00:33:19] Speaker 02: and let the client make that informed decision under the media analysis? [00:33:23] Speaker 00: I think it's certainly a tougher question at this point. [00:33:26] Speaker 02: I know it's a tougher question, which is why I'm asking it of you. [00:33:29] Speaker 02: And so I'm given how much weight you've put on the importance of looking at the state of the law at the time. [00:33:36] Speaker 02: What is the position of the US government now? [00:33:39] Speaker 02: As to this narrow question of whether something is a crime at all, [00:33:43] Speaker 00: Well, again, I think it would certainly be better to raise it. [00:33:46] Speaker 00: And I know that you're asking me to say definitively one way or the other. [00:33:49] Speaker 00: And I can't do that without going back and rereading Padilla, Your Honor. [00:33:53] Speaker 00: I think certainly at the time, I don't think it certainly wouldn't be. [00:33:58] Speaker 00: And I'm not aware of any case that would say that the failure to anticipate a change in the law like this is deficient, which is what the court would have to say to remand the case. [00:34:10] Speaker 02: The other question I had is, [00:34:13] Speaker 02: The indictment in this case doesn't seem to charge a crime at all either, because the indictment doesn't say that the document is one that's required by statute or regulation for entry or to stay within the United States. [00:34:34] Speaker 02: It omits that critical language. [00:34:47] Speaker 02: You've got an open question about whether it's a crime. [00:34:52] Speaker 02: Is that something that we factor into our competence analysis? [00:35:00] Speaker 00: Your Honor, I've got the indictment in front of me now. [00:35:02] Speaker 00: Could I ask you to point me in the direction that the court is looking? [00:35:20] Speaker 02: So that he knew, do they have, he knew that it was altered and procured by Paul's name, sorry I said, possessed the document, but doesn't say that he knew it was required by statute or regulation. [00:35:40] Speaker 04: But look at the first sentence of count one. [00:35:43] Speaker 03: The knowingly altered, I thought that was the altered. [00:35:46] Speaker 04: Knowingly altered a document prescribed by statute or regulation for entry. [00:35:50] Speaker 03: But the possession doesn't happen knowing. [00:35:53] Speaker 03: He didn't plead to the altering, right? [00:35:56] Speaker 00: He didn't plead to the altering. [00:35:57] Speaker 00: He plead to possession, knowing possession of an altered document. [00:36:03] Speaker 04: So is that a lesser included offense? [00:36:10] Speaker 02: They have to know it was required, right? [00:36:13] Speaker 02: It's not only they have to know that it's altered. [00:36:15] Speaker 04: But it does, and possess such document, knowing it to be altered. [00:36:18] Speaker 03: Knowing it to be altered, yeah. [00:36:23] Speaker 00: Well, maybe it works. [00:36:26] Speaker 00: The Fourth Circuit parsed the elements here, and I cited that to the court. [00:36:35] Speaker 00: Obviously, this is an issue that wasn't raised before. [00:36:42] Speaker 04: Anything further? [00:36:44] Speaker 00: Your Honor, I'm not sure if I could... Judge, you suggested that I had conceded some things. [00:36:51] Speaker 00: I wasn't sure what I had conceded. [00:36:52] Speaker 04: How do we strictly construe criminal statutes that the rule of lenity applies? [00:37:00] Speaker 00: Well, certainly the two cases that we have in front of us, both concluded that they strictly construed the statute when they found that foreign issued passports fell within the plane meeting. [00:37:16] Speaker 04: So you're just relying on the other servants in saying that? [00:37:21] Speaker 04: Yeah. [00:37:21] Speaker 04: OK. [00:37:23] Speaker 00: I know for the questions the government will submit. [00:37:27] Speaker 04: All right, Council for repellent. [00:37:31] Speaker 04: Take a couple of minutes here. [00:37:34] Speaker 05: Even in 2014, counsel should have known that this was an issue based on reading the statute itself, and also based on Campos Serrano, which narrowly construes the statute, and his analysis supports our argument here. [00:37:57] Speaker 05: I just want to point out that there really are very few cases addressing this, and now there is a split in the circuit, but that's because people who commit this conduct get charged under 1543. [00:38:09] Speaker 05: They don't get charged under 1546. [00:38:13] Speaker 05: That's an aberration. [00:38:14] Speaker 02: Do they get charged for possession? [00:38:18] Speaker 05: In the 1543 cases, [00:38:26] Speaker 05: Well, I can't really tell you whether it's possession or actually altering. [00:38:32] Speaker 05: I wasn't reading them with that in mind. [00:38:38] Speaker 02: On this question of whether counsel has an obligation to notify a client about, it's a colorable question or an unanswered question within the jurisdiction as to whether something's a crime, [00:38:52] Speaker 02: at all. [00:38:53] Speaker 02: Have there been any cases on things like honest services fraud, pleads, or anything like that? [00:38:59] Speaker 02: Have other courts addressed this question of whether it's a special obligation to address criminality itself in a PDEA framework, or does that just look like, you know, your client admitted that this violated this statute, that's what he was pleading to, and so [00:39:21] Speaker 05: Well, the client doesn't really know what statute they've violated. [00:39:26] Speaker 05: They need their counsel for that. [00:39:27] Speaker 05: They know what conduct they've committed, but they need their counsel to tell them whether that's a violation of this statute or that statute. [00:39:33] Speaker 05: Mr. Viner wasn't prepared to make that assessment on his own, and it was his counsel's obligation to help him make that assessment. [00:39:43] Speaker 05: And I just want to sort of hearken back to our second argument, which is even if it is included in 1546, [00:39:53] Speaker 05: You've got to look at the statutes and regulations for entry into the United States, and they require a valid unexpired passport. [00:40:04] Speaker 05: And this wasn't an unexpired passport. [00:40:07] Speaker 05: That might be an absurd result to say that he's not guilty of 1546 because the passport had expired. [00:40:17] Speaker 05: But that's because he shouldn't be charged under 1546. [00:40:19] Speaker 05: He should be charged under 1543. [00:40:22] Speaker 05: We ask the court to vacate the conviction. [00:40:25] Speaker 05: Thank you. [00:40:26] Speaker 05: Thank you. [00:40:27] Speaker 04: We'll take the case under advisement.