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case number 15 to 30 15.

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United States of America versus Rodney class appellant.

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Mr Class for pro se appellant Rodney class.

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Mr Cotter for a court appointed Amicus Currie for appellant and Miss Jones for the appellate.

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Good morning, Mr Class.

[00:00:16] Speaker 00:
Okay, your honor.

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We have several issues here.

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If we are being judged by case law, and case law is running the streets, then we have to go back and address that the prosecution and the police officers are in violation of case law itself.

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Because when the court has ruled that the DC gun laws were declared unconstitutional, that's exactly what it meant.

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You can't bring somebody in and charge them when the court has already ruled laws were declared unconstitutional.

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The fact that Judge Scully in the district court made that ruling the Palmer case.

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And then from July 23rd to July 28th, on CNN, people were allowed to carry openly on the street.

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If this is, I'm being charged for readily accessible.

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That's readily accessible.

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My stuff was inside my Jeep locked up and I didn't have a chance to get to it because I was 30 feet from it and the police officers already pulled my keys.

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So there's no such thing as accessibility.

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So if we're running case law, then the prosecution has to be charged for violation.

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If we're running the law, then let's go back what Congress said here and said what a firearm is.

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Under the National Firearms Act, what ATF says it is, what the IRS says it is, a firearm is a shotgun that's been modified to a barrel 18 inches or less, overall length is 26.

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A rifle that's been modified to a barrel 16 inches, overall length less than 26 inches.

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a fully automatic machine gun and a silencer.

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I did not have any of these.

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I had a carry concealed permit from North Carolina that allowed me to carry a pistol and a rifle.

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And that's exactly what I had.

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I did not have a firearm.

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I had an arm or what is called a piece in military.

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The other issue is is that the parking lot was not posted.

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There's no signs coming into DC to let you know you can't bring anything into this town.

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That's the other issue that we're dealing with in this.

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And if we are sitting here being judged by the law, then the prosecution under Title 36, Chapter 705, Section 705-03, disqualification for anybody who belongs to the bar member on a federal site.

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They cannot violate the Constitution.

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They cannot violate the laws, as Congress has wrote it up.

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And this is a clear case that this was a violation.

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Under that section, the system says whoever violates this is to be disqualified.

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They're advocating the overthrow of the United States government.

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They've advocated the overthrow of the Constitution.

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This violates the Smith Act.

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This violates Title 18, Chapter 115, Section 2385 of insurrection, rebellion, sedition, treason.

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Again, we have an issue here.

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I had to carry a consumer permit.

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The Constitution under Article 4, Section 1 and 2, gave me full faith and credit.

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14th Amendment gave me full faith and credit.

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Title 42, 1981, gave me full faith and credit.

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So are we running under laws or are we running under case law?

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Because people are not being charged out on the street for case law.

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They're being charged under a statutory number.

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The problem we're running into is the terminology.

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Congress defined it in the National Firearms Act, 1968 Gun Control Act, and the 1999 Firearms Owner Protection Act of what a firearm is.

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Your Honor, I did not have a firearm.

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I had a pistol and a rifle, and I had a carry-and-seal permit from the state of North Carolina.

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Constitutionally, I was well within my rights to carry it, but I did not have it on me.

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It was in my vehicle because I went into the house

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of Senate.

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I went into the congressional.

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I went through two metal detectors and I was searched out on the street between the two buildings.

[00:04:22] Speaker 05:
Thank you very much, Mr. Classy.

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Time's up.

[00:04:24] Speaker 05:
Thank you.

[00:04:32] Speaker 06:
Morning.

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Morning, Your Honor.

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May it please the court?

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I'm Troy McHiner, court appointed amicus, arguing in favor of Appellant Rodney Class.

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I'm reserving one minute for rebuttal.

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If I could, I'd like to jump straight to why this court should reach the merits in this case.

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And there are three reasons.

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First, even assuming for the sake of argument that there was an appellate waiver here, that waiver could not be knowing and intelligent.

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And the reason is because during the Rule 11 colloquy, Chief Judge Roberts told Mr. Class, quote, you can appeal your conviction if you believe your plea is somehow unlawful.

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Now, three pages later in the transcript of supplemental appendix 105, Mr. Clark's confirmed that exception.

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This court has held repeatedly, for example, in United States v. Godoy at 706 at 3rd at 493, that a thin is entitled to rely on the plain meaning of what the trial judge says during the Rule 11 colloquy.

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Well, here, Mr. Class did just that.

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He appealed his conviction almost immediately.

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In fact, even before the judgment was in.

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I know that we sit to review errors by a district judge, the district court, that have been preserved for appellate review.

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What errors are you saying the district judge committed that have been preserved for appellate review?

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In light of the fact that the guilty plea was entered without considering specific terms of the plea agreement, which I agree with you, that's a very good argument, but just in the inherent nature of the guilty plea, the norm is that all that's gone before that hasn't been specifically reserved for appeal is not usually reviewable.

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Isn't that the case?

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Well, the Supreme Court said in MENA footnote 2, which we think is directly on point here, that a guilty plea doesn't inherently waive anything.

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What a guilty plea does is it establishes factual guilt to the point that the government no longer has to prove it.

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And that will inherently render irrelevant many constitutional arguments, essentially all statutory arguments, a lot of procedural arguments.

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But there are still some arguments that that doesn't render relevant.

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Those are the ones that fall within the Blackledge MENA exception.

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Right, essentially.

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Claims like that that do not depend on factual guilt.

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Oh, well, I mean, that's one interpretation of the scope of the black legomena exception, but I guess I thought the point that Joe Santel was making is that if you just put that exception to one side, because that's true that under all the cases, including our cases and the Supreme Court's cases, whatever is bound up as relinquished by the fact of the plea itself, there's some residual that's left because of black legomena.

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But if you put that to one side, then

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under our decisions, the fact of entering the plea ordinarily extinguishes a number of challenges one could make, including on appeal.

[00:07:17] Speaker 06:
Well, perhaps ordinarily.

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We think in this case, and this is moving into the second reason why we think that the court should reach the merits here, the terms of the plea here aren't entirely clear on this.

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For example, Mr. Klassick explicitly waived numerous other rights.

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He never explicitly waived this right.

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And which right?

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How would you frame the right?

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The right to directly appeal is conviction.

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And he waved his right to collaterally attack it.

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He waved his right to direct to appeal to the sounds.

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Do we require that?

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Do we require an express waiver of the right to appeal if it's not a conditional plea?

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I mean, rule 11AA2 talks about conditional pleas.

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Right.

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Do we require an express waiver of that?

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Well, so we think in this case that the integration clause essentially affected a preservation of all claims not waived.

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As we understand rule 11, the conditional appeal part, it essentially leaves to the parties themselves to decide what issues are preserved, which issues will be waived.

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And in a case like this, the parties didn't waive this.

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And then I think it's very critical that they included an integration clause.

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The government said there will be no implied understandings or conditions.

[00:08:28] Speaker 04:
So can I get to the integration clause in a second, but let's just assume that's not there for purposes of this question.

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Why are we talking in terms of a right to appeal?

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Because I thought the rationale of our decisions and the Supreme Court's decision is not that there's some particular thing about an appeal.

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It's that when you plead guilty, the nature of a guilty plea is that you're acknowledging that you're convicted.

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And so then one thing that naturally follows from that is that you can't appeal.

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You also, based on that, you can't appeal the fact of the conviction because what you're doing by pleading guilty is being convicted.

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So the appeal is a part of that.

[00:09:05] Speaker 04:
Motion for reconsideration before the trial judge would be part of that too.

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It's just that a lot of things are bound up in the fact of the plea itself, and that's one of the adjuncts of that is it's not subject to appeal.

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Does that understanding drive with your understanding?

[00:09:16] Speaker 06:
Well, so we think Metta Footnote 2 essentially says that when you plead guilty, you do admit factual guilt.

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And we understand that to mean you admit the government can meet each element of the statute here.

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But there are still some things that don't survive.

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And I see you.

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So on factual guilt, then let's – in the universe of factual guilt, once we bring back in the integration clause now, would you say that even factual guilt is something that can be appealed notwithstanding the agreement?

[00:09:44] Speaker 06:
Perhaps.

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I don't think so, though, because in that case, the defendant would have conceded that issue below.

[00:09:51] Speaker 04:
We're not saying that the integration clause means Mr. Klass can raise... But we're talking about the right to appeal, and so it seems to me that your argument, I think, would suggest, or maybe there's a distinction, that because the agreement speaks of a right to appeal, it talks about appeal only in relation to sentencing, anything else can be appealed, including factual guilt.

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Right.

[00:10:09] Speaker 06:
Well, perhaps you could appeal and then it would be immediately foreclosed by a factual concession in the district where if you tried to argue, uh, actually I wasn't on the Capitol grounds or, you know, it turns out that wasn't me at all.

[00:10:19] Speaker 06:
Those issues we think are conceded under men off footnote too.

[00:10:22] Speaker 04:
But you'd get to the merits.

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It's not it's it's not that the ability to raise them is foreclosed.

[00:10:28] Speaker 06:
Yes, I think that would be correct.

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And so this is the first two reasons why I think the court should reach the merits, knowing and intelligent, even assuming there was a waiver here, it wasn't knowing and intelligent.

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The second reason, the terms of the guilty plea, there's at least a doubt there, we think.

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And under this court's decision and sealed case from 2012 at page 63, footnote two, we think there's at least a doubt there.

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Then the court should construe that against waiver against the government and in favor of Mr. Class.

[00:10:54] Speaker 04:
So can I ask about the integration clause then?

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So the integration clause speaks in terms of

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understanding promises, agreements, representations, other than those contained in writing, but it defines those understandings as those that have been made by the parties.

[00:11:11] Speaker 04:
So one way to think about what Judge Griffith was referring to, rule 11, is that there's a background understanding in the law that a guilty plea has certain consequences, including that anything that's not part of the Black Lodge amendment exception is something that you relinquish at the time you plead guilty, and then therefore you can't raise it again, including on appeal.

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So it's not something that's part of an arrangement between the parties.

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It's just something that otherwise exists under the law.

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And if it otherwise exists under the law, then the integration clause isn't doing a whole lot of work.

[00:11:39] Speaker 06:
Well, so we think that this is something where there's a background legal principle under Rule 11, but it really is something that's to be decided between the parties.

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For example, in Delgado Garcia, at page 1343, there was a claim that was not preserved under Rule 11.

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It was not under Black Legomena, but the court still addressed it because the government hadn't properly invoked the waiver.

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And so as we see it, what Rule 11 does is it leaves to the parties how these issues will be reserved for appeal or not reserved for appeal.

[00:12:07] Speaker 06:
When you're on appeal, essentially, the court can decide whether the merits of those issues, if the government and the defendant haven't expressly waived them.

[00:12:15] Speaker 06:
Again, we think there's at least a question here, given the integration clause, given the other facts, given the rule of oncology.

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An under-sealed case, we think there's at least a question about it.

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The court must proceed to the merits, assume there is no waiver.

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If I could hit my third point quickly is why the courts have reached the merits.

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It's the blacklegment exception.

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And we think that because we're attacking the constitutionality of the statute here, we fit under this court's decision in Coleman, which said that such a claim is not waived by guilty plea.

[00:12:45] Speaker 06:
We think we fit under MENA and Black Ledge themselves, which said if you're raising a claim that the government cannot convict the defendant validly, regardless of his factual guilt, those sort of claims survive.

[00:12:55] Speaker 05:
I thought we had construed Black Ledge MENA quite narrowly, and far more narrowly than you can't.

[00:13:00] Speaker 05:
The way I understand it is, if there's no jurisdiction of the court, that's not a claim you can make here.

[00:13:07] Speaker 05:
Correct.

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We're not making that claim.

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The second one is,

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the effect that the government can't even indict someone.

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It's that basic.

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And you're saying that's the nature of the exception here.

[00:13:19] Speaker 06:
Well, we think that to the extent the court's decisions in Miranda and Delgado Garcia, which I think are probably the cases you're referring to, to the extent that they suggest otherwise that a claim about the constitutionality of the statute is automatically waived by a guilty plea, then we think that those should be read in light of their facts.

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And we think it's really critical in those cases that the defendants had conceded facts at the district court that directly foreclosed their guilty pleas.

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And that's important because under Brose, the 1989 Supreme Court case, a black-legal menac claim cannot survive.

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unless it's apparent from the face of the record at the time of the guilty plea.

[00:13:52] Speaker 06:
Well, in Delgado Garcia and Miranda, they didn't just not survive, they were actually foreclosed by the trial record below.

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That's not the case here.

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We don't contend that the facts below should be challenged.

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We're going on the facts as they exist, the record as it sits right now.

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in saying that those kinds of claims, because we attack the constitutionality side, should survive.

[00:14:09] Speaker 06:
And for that reason, the decisions in Delgado, Garcia, Miranda, while correct on their facts, do not dictate the outcome here.

[00:14:16] Speaker 06:
I'm sorry, get to the merits.

[00:14:17] Speaker 06:
I said you're going to get to the merits.

[00:14:18] Speaker 06:
I didn't let you get there.

[00:14:19] Speaker 06:
Get to the merits, please.

[00:14:20] Speaker 06:
All right, I appreciate that.

[00:14:21] Speaker 06:
I'll try to go through it quickly.

[00:14:22] Speaker 06:
Well, so we think that the gun ban violates the Second Amendment.

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because it categorically prohibits a responsible citizen from keeping or bearing any weapon whatsoever for self-defense in an area that's publicly accessible and unsecured.

[00:14:37] Speaker 05:
This is an as-applied challenge, right?

[00:14:39] Speaker 06:
For the Second Amendment, yes.

[00:14:40] Speaker 05:
Yes, for the Second Amendment.

[00:14:41] Speaker 05:
So let's talk about

[00:14:42] Speaker 06:
So we think it's important here.

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Mr. Klass never brandished the weapon.

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In fact, he never carried it on his person at all.

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The government concedes at page 7 of their brief he had no criminal intent to use the weapon.

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They concede at page 48 of their brief that he has no violent history.

[00:14:58] Speaker 06:
And we think that in an as-applied challenge, as Judge Tinkovich said in his concurrence in Bonnetty, which I think is really on point here, that the who of an as-applied challenge is really critical here.

[00:15:08] Speaker 06:
Well, we have Mr. Glass, someone who admittedly mistakenly parked in someone else's spot, but besides that, he never used a weapon in any dangerous way, he has no violent history or prior felonies or anything like that, and yet there's a felony conviction against him.

[00:15:21] Speaker 06:
And we think that that's essentially, you know, it's a major problem here, the Second Amendment.

[00:15:25] Speaker 06:
And the government argues, well, none of that matters because this parking lot is a sensitive place.

[00:15:31] Speaker 06:
But I think if you look through their brief carefully, what you see is that they describe other parts of the Capitol grounds as being sensitive.

[00:15:38] Speaker 06:
The Capitol itself, the Capitol steps perhaps inside the buildings, restricted areas.

[00:15:43] Speaker 06:
But they never really talk about this parking lot in particular.

[00:15:46] Speaker 06:
They never explain why this parking lot is so sensitive that effectively the Second Amendment just doesn't apply.

[00:15:51] Speaker 06:
Well, it's about a thousand feet and I think that's giving the government the benefit of the doubt.

[00:15:56] Speaker 05:
It's right next to the botanical garden.

[00:16:02] Speaker 06:
Yeah.

[00:16:03] Speaker 06:
Well, so using judicially noticeable maps and giving the government...

[00:16:10] Speaker 06:
And given the government the benefit of the doubt on the distances, I'd say it's about 1,000 feet a little more to the steps of the Capitol, about 900 feet to the entrance of Rayburn, 300 or 400 feet from the entrance to the Botanic Gardens.

[00:16:20] Speaker 05:
So let me back up a little bit.

[00:16:22] Speaker 05:
So your first argument is that he didn't carry it with him.

[00:16:25] Speaker 05:
He didn't have it with him.

[00:16:26] Speaker 05:
So what, that the statute is too broad in reaching a situation where someone's not, where they have it in their car, but they don't have it on their person?

[00:16:37] Speaker 05:
I think that's a distinction that makes a difference constitutionally.

[00:16:42] Speaker 06:
Well, we think it certainly shows in this case that Mr. Klaas' behavior was not in any way threatening or dangerous.

[00:16:47] Speaker 06:
He never had it concealed on his person or carried openly on his person.

[00:16:50] Speaker 06:
But that would apply no matter how close the car got.

[00:16:53] Speaker 06:
Right.

[00:16:54] Speaker 06:
True.

[00:16:55] Speaker 06:
But of course, in this case, the car was 1,000 feet away, perhaps more.

[00:16:58] Speaker 04:
And it just seems like that's ultimately the Novavir argument then, is that the vehicle never got close.

[00:17:05] Speaker 04:
It's not that the person... The weapons never got close, I think, is the key point.

[00:17:08] Speaker 04:
Yeah, the vehicle carrying the weapons.

[00:17:09] Speaker 04:
Right.

[00:17:09] Speaker 06:
Well, the government argues that this was concealed carry, and so I'm trying to rebut that point, that this was truly carry at all.

[00:17:15] Speaker 06:
He never bared it on this person at all.

[00:17:17] Speaker 04:
And so for that reason, we think that the gun ban here sweeps with too far of a... So you wouldn't say that there's no curtailage around the Capitol building to which a law could be constitutionally applied?

[00:17:32] Speaker 06:
Sorry.

[00:17:33] Speaker 06:
So Heller One obviously said that bans inside buildings are presumptively constitutional.

[00:17:37] Speaker 06:
We don't challenge that.

[00:17:38] Speaker 06:
And then even around these buildings, there are armed guards posted, and they can still present the same problems as inside the buildings themselves.

[00:17:45] Speaker 06:
That is, people can be tightly confined, you could have senators walking immediately in and out of the buildings, that sort of thing.

[00:17:52] Speaker 06:
And so even around the buildings, the curtilage, even a reasonable amount of distance away from them, the government has a much stronger interest in banning weapons and commensurately individuals have a much lesser interest in defending themselves.

[00:18:05] Speaker 06:
But when you get so far away like this in an area where there aren't constant patrols, where you're not close to a building, where there's nothing sensitive going on, it's really just a parking lot in many ways like any other parking lot.

[00:18:16] Speaker 06:
that at that point, essentially the gun ban is swept too broadly.

[00:18:19] Speaker 06:
It's no longer a regulation that could be sensible or reasonable.

[00:18:23] Speaker 04:
It seems like there's some sense in having parking lots that are further away if there's a greater crowds that go into the premises, right?

[00:18:33] Speaker 04:
That's just the natural incident of having a popular destination is that you're going to need more parking spots.

[00:18:38] Speaker 04:
Well, so the fact that the parking lot happens to be a distance away might just reflect the fact that there's lots of visitors or that there's lots of people who need to come in and out of the building to carry on the kind of government business that occurs in that location.

[00:18:53] Speaker 06:
Well, I don't think that the lots are exclusively for tourists or visitors, that sort of thing.

[00:18:57] Speaker 06:
I mean, people need to park anywhere.

[00:18:59] Speaker 06:
That's why Mr. Klass ended up parking there by accident.

[00:19:02] Speaker 06:
Essentially, this area is a free drive-through at any time of the day.

[00:19:05] Speaker 06:
There's no security arm.

[00:19:06] Speaker 06:
There's no security barrier.

[00:19:08] Speaker 06:
You don't go through metal detectors or anything like that.

[00:19:10] Speaker 06:
And so I think that the distance, it's critical because it shows that this isn't close to a building.

[00:19:15] Speaker 06:
These weapons can easily be brought into a building and that this parking lot in particular, there's really just nothing sensitive about it.

[00:19:21] Speaker 06:
And if the government wants to say that the second amendment doesn't apply at all on a particular place, which is presumptively what happened when you say a place is sensitive, the government needs to meet a much stronger burden here.

[00:19:31] Speaker 06:
And at the district court, they just argued, well, this is government property.

[00:19:34] Speaker 06:
Therefore, it's sensitive.

[00:19:35] Speaker 06:
And we don't think that constitutional rights suddenly end right at the government property line.

[00:19:43] Speaker 06:
All right.

[00:19:43] Speaker 06:
Thank you very much.

[00:19:52] Speaker 02:
Good morning, Your Honors.

[00:19:53] Speaker 02:
May it please the Court?

[00:19:54] Speaker 02:
Belinda Jones for the United States.

[00:19:57] Speaker 02:
To address Amicus's arguments, the plea, we believe, was fully knowing and intelligent.

[00:20:04] Speaker 02:
He has not moved to withdraw the plea, which is one sign that Mr. Klass really does not believe.

[00:20:12] Speaker 05:
And how do you read the plea colloquy?

[00:20:13] Speaker 05:
Do you agree with your friend's interpretation of what took place?

[00:20:18] Speaker 02:
That was one of the conversations that the judge had with Mr. Class.

[00:20:22] Speaker 02:
There were two follow-up conversations that are recited in my brief at page 15.

[00:20:27] Speaker 02:
In one of them, he spoke to Mr. Class and said, now, I want to confirm.

[00:20:32] Speaker 02:
Do you understand that you're giving up your appeals rights, except for the exceptions we discussed?

[00:20:37] Speaker 02:
And Mr. Class said, yes, I do.

[00:20:39] Speaker 02:
And then the final conversation between them, the judge says, do you agree, do you understand,

[00:20:45] Speaker 02:
that you are giving up your right to appeal your conviction and sentence, except if the sentence exceeds a statutory maximum or the claims are based on ineffective assistance of counsel or newly discovered evidence.

[00:20:59] Speaker 02:
And that is on, I believe, pages 114 and 115

[00:21:03] Speaker 02:
of the pre-equality.

[00:21:05] Speaker 02:
So the last thing that Mr. Klass heard the judge say to him is you understand that you are giving up your right to appeal your conviction and your sentence except for a couple of exceptions that only apply to your sentence.

[00:21:19] Speaker 05:
So you're saying it sort of works like an integration clause?

[00:21:22] Speaker 02:
Yes, in that way.

[00:21:24] Speaker 02:
Well, not so much an integration clause as you have to look at the totality of the colloquy, of the conversation between the judge and the defendant.

[00:21:33] Speaker 02:
And it is significant, we think, that although the claim by Amicus is that this invalidates the plea, there's been no attempt to move or vacate the plea.

[00:21:43] Speaker 02:
He received benefits from the government as a result of this plea, but now wants to take away part of the benefit that the government received.

[00:21:51] Speaker 02:
and yet not have to give up anything himself.

[00:21:57] Speaker 04:
The fact that there hasn't been a motion to withdraw the plea, that doesn't answer the arguments that have been made about the scope of the plea agreement.

[00:22:07] Speaker 04:
So in other words, if the integration clause is read in the way that Amica suggests it should be read, then there still would be an opportunity to appeal the issue that's being appealed.

[00:22:18] Speaker 02:
But the integration clause can't take away the effect of law, as Your Honor pointed out, that there's a backdrop of legal understanding about the legal consequence of a guilty plea.

[00:22:30] Speaker 02:
And it's understood.

[00:22:31] Speaker 02:
The reason you cannot find, or I was completely unable to find a case that addressed the effects of an integration clause on a guilty plea.

[00:22:40] Speaker 04:
So can I just ask on this integration, is it fair to assume that this is just boilerplate?

[00:22:44] Speaker 04:
Why is it that apparently in some places there's an explicit provision made as to appeals of convictions, but in this agreement there isn't?

[00:22:57] Speaker 02:
But, Your Honor, I think there might be two reasons for that.

[00:22:59] Speaker 02:
One is, I think, often the language that's being used is really talking about the conviction and collateral attacks on the conviction, which would not be preserved, would not be waived by a guilty plea.

[00:23:11] Speaker 02:
In some instances, I think it's just an example of suspenders and belt and suspenders, just over cautious writing and too much overdrafting.

[00:23:21] Speaker 02:
But I would come back to the other point.

[00:23:23] Speaker 02:
The government can't give away, we submit, the government can't give away the requirements of rule 11A2.

[00:23:29] Speaker 02:
That rule says the issues to be preserved have to be put in writing, the government has to affirmatively agree, and most important, the court has to affirmatively agree.

[00:23:42] Speaker 03:
Can you explain why it is, though, that is, Judge Srendler and ask, we see from time to time from your office, plea agreements that do say,

[00:23:52] Speaker 03:
They're waving direct to appeal, not just Senate waving direct to appeal.

[00:23:56] Speaker 03:
Why was that not here if that was the intent in this case?

[00:24:00] Speaker 02:
We think that those other agreements are just an example of being over cautious and too cautious.

[00:24:06] Speaker 02:
Belt and suspenders.

[00:24:07] Speaker 02:
But it's not a necessary part of a plea agreement that we do that.

[00:24:12] Speaker 02:
We're just repeating what the law already does as a result of a guilty plea.

[00:24:18] Speaker 03:
And we could not even even I'm trying to be a good idea if your office got together on one of those were

[00:24:25] Speaker 02:
Well, I am in the appellate section.

[00:24:33] Speaker 02:
So yes, I would always agree that it would be good if if if all of our attorneys would be consistent about what they do, but that doesn't negate the effect of rule 11 a to

[00:24:43] Speaker 02:
It doesn't negate the effect of Tollett.

[00:24:46] Speaker 02:
The integration clause cannot take away at least the legal effect of 11A2 because the court was not a part of that plea agreement and we do not, we as the government, do not have the ability to give away the court's authority over a conditional guilty plea.

[00:25:05] Speaker 02:
So we don't think the integration clause can serve the purpose that amicus would like it to serve in this case.

[00:25:12] Speaker 04:
Can you make the point again about how the court becomes involved?

[00:25:14] Speaker 04:
I'm not quite following it.

[00:25:15] Speaker 02:
Rule 11A2 says that in order for there to be a preservation of appeal rights, the defendant has to affirmatively put in writing the issues to be appealed.

[00:25:26] Speaker 02:
The government has to affirmatively agree that those are the issues.

[00:25:30] Speaker 02:
And the court has to agree that those issues can be appealed.

[00:25:35] Speaker 02:
You have none of that in the record of this case.

[00:25:38] Speaker 02:
And what amicus would have you do is use the integration clause of this agreement between the government and the defendant to negate the legal effect of rule 11-82, which would basically take the court out of the process and take out of the process the listing of the issues to be appealed so that everyone knows what the constraints are on what may be appealed.

[00:26:02] Speaker 04:
But the court approves of the agreement, right?

[00:26:05] Speaker 02:
But they don't – but this agreement – Amicus has this agreement waiving the government's ability to protest this appeal.

[00:26:15] Speaker 02:
The issues to be appealed don't appear in that agreement.

[00:26:19] Speaker 02:
That's not affirmatively set out.

[00:26:21] Speaker 04:
The government has – Right, but I guess it doesn't – it just seems like it falls back, unless I'm missing something.

[00:26:24] Speaker 04:
It seems like it didn't just fall back.

[00:26:25] Speaker 04:
It falls back on what work do you think the integration clause is doing.

[00:26:29] Speaker 04:
If the integration clause is doing the work that Amica says it is, and then the court is approving the agreement that includes the integration clause, then what the agreement is effectively saying is there's a bunch of stuff that is still subject to appeal because the agreement doesn't spell out that it's not subject to appeal.

[00:26:48] Speaker 02:
But we believe that the court has the right to know what stuff is specifically being preserved for appeal, because one of the purposes of the rule is to encourage conditional pleas when the issues will resolve everything so that we aren't going to have this continuous litigation.

[00:27:06] Speaker 03:
Would it be reasonable to say, or parents say, that your position is that there would be no reason for a rule 11A2 if it were not the case that the legal backdrop is,

[00:27:18] Speaker 03:
the public issues have been forced in our way by the guilty plea.

[00:27:23] Speaker 02:
Well, certainly.

[00:27:24] Speaker 02:
There would be no need for that.

[00:27:26] Speaker 02:
And 11A2 in the commentary says basically it's reflecting the Tollett standard and the law as it was at that time.

[00:27:34] Speaker 02:
And it was to allow courts that were reluctant to allow conditional guilty pleas to do so with confidence knowing what the issues would be.

[00:27:44] Speaker 04:
So the background, what we're talking about, there's this notion that there's a background principles of law against which the agreement is put in operation.

[00:27:53] Speaker 04:
And your point is that one of the background principles of law is that there actually needs to be an itemization of the particular issues that are going to be appealed.

[00:28:01] Speaker 04:
Yes.

[00:28:01] Speaker 04:
Because the assumption of Rule 11A2 as a court is part of that colloquy to determine what particular things are still open to be resolved on appeal.

[00:28:09] Speaker 02:
Yes.

[00:28:10] Speaker 02:
Yes, Your Honor.

[00:28:11] Speaker ?:
OK.

[00:28:13] Speaker 02:
As to black-ledged menna, we agree that this court has construed the black-ledged menna exception narrowly.

[00:28:22] Speaker 02:
As the court held in Miranda and in Delgado Garcia, as applied challenges to the constitutionality of a statute do not fit within black-ledged menna, because they don't prevent the court from hailing the defendant into court to determine whether or not

[00:28:41] Speaker 02:
the as applied challenges is appropriate.

[00:28:45] Speaker 02:
So that leaves here, in this case, only the vagueness challenge, if the vagueness challenge is construed as a facial challenge.

[00:28:52] Speaker 02:
But as we pointed out in our briefs, that's forfeited for an additional reason, because there was no vagueness challenge presented to the court below.

[00:29:01] Speaker 02:
There was no ruling on that in the court below.

[00:29:04] Speaker 02:
And this court has held at least three times

[00:29:07] Speaker 02:
that the failure to raise a constitutional claim in the court below is a complete forfeiture.

[00:29:12] Speaker 02:
Not merely a waiver, but a forfeiture.

[00:29:15] Speaker 02:
And so on that basis, the vagueness charge falls out.

[00:29:22] Speaker 02:
If you'd like, as to the merits, we would point out that we are certainly not saying that simply because the federal government is the owner of property, that gives them a right to do whatever they want

[00:29:36] Speaker 02:
in terms of gun ownership, but that's not the question here.

[00:29:41] Speaker 02:
The lot that we're talking about was reserved for the exclusive use of house employees.

[00:29:46] Speaker 02:
If you stand in that lot and look to your right, if you face the Capitol and look to your right, you'll see the Rayburn office building looming over the street, and you'll see the Capitol up here.

[00:29:58] Speaker 02:
House employees from the Rayburn House office building would be using that parking lot during the time

[00:30:04] Speaker 02:
when Mr. Klass had parked the Jeep there.

[00:30:07] Speaker 02:
It was a work day.

[00:30:09] Speaker 02:
He parked in the middle of the day.

[00:30:11] Speaker 04:
That's partly the reason why... Can I just ask you one question before we talk about the details of exactly where that lot is located?

[00:30:18] Speaker 04:
This question about concealed carry.

[00:30:21] Speaker 04:
As I normally think, I think as one normally thinks about concealed carry, you're talking about weapons that are concealed on the person.

[00:30:28] Speaker 04:
Not weapons that are somehow descriptively accountable as concealed because they're in a car.

[00:30:37] Speaker 02:
When we prosecute cases in the District of Columbia for carrying drugs or carrying weapons, carry and constructive carry also include items that are within easy reach, at a minimum within easy reach.

[00:30:51] Speaker 02:
One of the weapons found in Mr. Class's Jeep

[00:30:54] Speaker 02:
was in an unsecured bag right beside the driver's seat, between the driver's seat and the passenger's seat.

[00:31:00] Speaker 02:
That's an easy factual scenario for us to be able to prove that he was in constructive possession, constructively carrying at least that weapon when he drove the Jeep onto the parking lot.

[00:31:13] Speaker 02:
And that lot is part of the Capitol grounds.

[00:31:16] Speaker 02:
So we would also point out that he pled guilty

[00:31:22] Speaker 02:
to carrying the weapon onto the Capitol grounds.

[00:31:26] Speaker 02:
And I don't think this is the time for Amicus to suggest that that fact can be disclaimed.

[00:31:33] Speaker 02:
He agreed that he was carrying the weapon on the Capitol grounds.

[00:31:37] Speaker 02:
It's too late to go back on that factual agreement.

[00:31:41] Speaker 02:
But that is the legal way we approach these kinds of facts in determining whether or not somebody is carrying whatever item it is.

[00:31:51] Speaker 02:
We would say as well that the general sensitivity of the grounds we've explained in our brief, the need to protect Congress, the need to protect their staffs, and the need to protect Congress of course is more than the need to protect the public generally from general crime.

[00:32:11] Speaker 02:
Amicus focuses a lot on that, but of course there's a special need to protect people who may be targeted simply because they are legislators, because of their role.

[00:32:20] Speaker 02:
That applies as well to areas, as Your Honor has suggested, the curtilage around the buildings where the members of Congress and their staffs are going to be.

[00:32:30] Speaker 02:
I'm not very familiar with guns, but unless someone can say that you cannot stand where his Jeep was parked and kill someone who's standing in front of the Rayburn office building, or someone who might be standing on the terrace of the Capitol,

[00:32:48] Speaker 02:
then I think it's within the curtilage.

[00:32:51] Speaker 03:
That'd be an awfully good shot with a handgun.

[00:32:55] Speaker 02:
They were not all.

[00:32:56] Speaker 02:
I think one of the items was a rifle, Your Honor.

[00:33:00] Speaker 02:
Yeah, a rifle.

[00:33:01] Speaker 02:
But that doesn't matter in terms of the general applicability of these regulations.

[00:33:06] Speaker 02:
The concerns of the Capitol Police and the security of the people on the Capitol grounds has to allow them some curtilage, some room to have a buffer around these buildings where we know people who are likely to be targeted are going to be doing their work.

[00:33:23] Speaker 02:
And that's one of the most important reasons for allowing this regulation to apply outside the buildings as well as inside the buildings.

[00:33:38] Speaker 05:
Your Honor.

[00:33:39] Speaker 05:
We have your argument.

[00:33:39] Speaker 05:
Thank you very much.

[00:33:40] Speaker 02:
We would like you to affirm.

[00:33:41] Speaker 02:
Thank you.

[00:33:45] Speaker 05:
I believe you reserved one minute, Mr. O'Connor.

[00:33:47] Speaker 05:
We'll give you back a minute.

[00:33:53] Speaker 06:
I appreciate your honor.

[00:33:54] Speaker 06:
If I could, I'd like to hit a few points very quickly that the governor mentioned.

[00:33:58] Speaker 06:
She talks about the perhaps back and forth in terms of the rule colloquy, but Mr. Class confirmed that SA 105, there were exceptions to appealing his conviction, and then he almost immediately appealed.

[00:34:10] Speaker 06:
He appealed before there was even a judgment.

[00:34:11] Speaker 06:
So I think we understand what his view was.

[00:34:14] Speaker 06:
Also, this argument that the government cannot give up the Rule 11 rights, I think, is belied by this court's decision in Delgado Garcia at page 1343, where the court found that there was a claim that was not preserved under Rule 11, was not under black legomena, and the court still addressed it because the government hadn't invoked it.

[00:34:32] Speaker 06:
We think that pretty clearly shows this is something for the government and the parties to decide.

[00:34:39] Speaker 06:
Also, on the point that Judge Santel was making, it would have been very easy for the government to include a provision like this.

[00:34:45] Speaker 06:
And the fact that they didn't is kind of what's led to this morass, as it were.

[00:34:49] Speaker 06:
And so, I mean, we want to encourage the government to clearly draft these guilty plea.

[00:34:53] Speaker 06:
I think that's what the sealed case decision makes clear.

[00:34:57] Speaker 06:
Also the government, one more point, the government repeatedly cites Tollett v Henderson for this argument that everything for the guilty plea is inherently waived, but Mena, two years later, expressly disapproved that reading of Tollett at a footnote too.

[00:35:08] Speaker 06:
And so we don't think that there's this clear breaking point every time right at the guilty plea and everything before then is gone.

[00:35:14] Speaker 06:
If the court has any other questions, I'd be glad.

[00:35:16] Speaker 05:
Thank you very much.

[00:35:18] Speaker 05:
Thank you, Your Honor.

[00:35:18] Speaker 05:
Your case is submitted.

[00:35:20] Speaker 05:
Mr. McCotter, you were appointed by the court to appear as amicus in this case, and we thank you very much for your assistance.