[00:00:14] Speaker 00:
Stand please.

[00:00:33] Speaker 00:
Oh, yay, oh, yay, oh, yay.

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All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the Court is now sitting.

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God save the United States and its Honorable Court.

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Be seated, please.

[00:00:53] Speaker 00:
Case number 17-3034, United States of America versus Lanell G. Glover, Appellant.

[00:00:59] Speaker 00:
Ms.

[00:00:59] Speaker 00:
Baderman for the Appellant, Mr. Hansford for the Appellee.

[00:01:03] Speaker 01:
Good morning, judges Rogers, Wilkins, and Sentel.

[00:01:06] Speaker 01:
May it please the court?

[00:01:07] Speaker 01:
I'm Donna Biederman, and I'm here on behalf today of Mr. Lionel Glover.

[00:01:12] Speaker 01:
I cannot imagine how Mr. Glover could have been any clearer than he was during the plea colloquy.

[00:01:19] Speaker 01:
I count at least five times that he told the court that he did not understand the rights he was giving up.

[00:01:24] Speaker 01:
He never said he understood them at all.

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Over and over, he told the court that he didn't understand what he was waving.

[00:01:32] Speaker 03:
So why did your client then respond that he understood when the district court periodically asked him, do you understand?

[00:01:42] Speaker 03:
Do you have any further questions?

[00:01:44] Speaker 03:
Your client said no.

[00:01:46] Speaker 01:
My client never said he understood.

[00:01:48] Speaker 01:
And he did indicate after his attorney said that he understood

[00:01:53] Speaker 01:
that he still had questions that he still did not understand.

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Not at one point did he say that he understood the rights he was giving up.

[00:02:01] Speaker 03:
So this court should ignore his answers to the district court's questions?

[00:02:07] Speaker 01:
No.

[00:02:08] Speaker 01:
He never said that he understood the appellate rights he was giving up.

[00:02:11] Speaker 01:
He never

[00:02:12] Speaker 01:
admitted that he understood those rights.

[00:02:14] Speaker 01:
He always said he was confused.

[00:02:16] Speaker 01:
His attorney said that he had understood them.

[00:02:18] Speaker 01:
At one point, the district judge said to him a whole litany of things, and at the end... Maybe you didn't hear what I said in my first question.

[00:02:27] Speaker 03:
When the district court asked your client as to what he was waiving as to the right to appeal, and the district court went over it with him, and he said, is that correct?

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Do you have anything further?

[00:02:42] Speaker 03:
your client said no.

[00:02:45] Speaker 03:
Then the district court went on further and said subsequently, after this colloquy to which you're referring, and your client said no in response to the district court's question, did he have any further questions?

[00:03:00] Speaker 01:
His response to did he have any further questions were, my only questions concern the appellate waiver.

[00:03:05] Speaker 03:
So would you agree that

[00:03:08] Speaker 03:
What your client was concerned with principally before the district court was the scope of his waiver of the right to appeal.

[00:03:20] Speaker 03:
And specifically about the sentence and a claim of ineffective assistance of counsel?

[00:03:30] Speaker 01:
The assistance of counsel

[00:03:33] Speaker 01:
in addition to the scope of the rates that he was waiving.

[00:03:37] Speaker 01:
Those were his concerns.

[00:03:39] Speaker 05:
What other scope of rights that he was waiving did he ever raise any question about?

[00:03:47] Speaker 01:
He said multiple times that he didn't understand which rights he was giving up on appeal.

[00:03:54] Speaker 01:
So the scope of the rights that he was concerned about was everything that he would be giving up on appeal.

[00:04:00] Speaker 01:
There were multiple questions and multiple times that

[00:04:03] Speaker 01:
at least five times, that he said he didn't understand the scope of the appellate rights that he was giving up.

[00:04:10] Speaker 01:
So that's what he was mostly concerned about, although he did raise these other questions, the questions of ineffective assistance of counsel.

[00:04:17] Speaker 05:
What about pages 30 and 31 of the plea transcript where had the government's request

[00:04:24] Speaker 05:
before the court concluded the proceeding, the court asked some additional questions about the appeal waiver.

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Ben and Mr. Glover was asked specifically on page 31, do you understand that?

[00:04:42] Speaker 05:
And the transcript says that the defendant said yes.

[00:04:46] Speaker 01:
Yes.

[00:04:46] Speaker 01:
That yes came at the end of a long list of questions or a long list of statements that the court was telling him.

[00:04:54] Speaker 01:
And the very last part is what he said yes to, which doesn't mean that he understood the rights that he was giving up.

[00:05:01] Speaker 01:
The court went on to a long thing.

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He did not ask him if he understood the entire thing.

[00:05:06] Speaker 01:
He said, at the end, I don't recall the exact question.

[00:05:09] Speaker 05:
But we're supposed to say that there was

[00:05:13] Speaker 05:
This was an improper compound question in that the response of yes, we don't know what the response was to what part of that compound question, as opposed to saying that he was responding yes to every single part of the compound question.

[00:05:32] Speaker 01:
That's correct.

[00:05:33] Speaker 01:
Mr. Glover had an 11th grade education.

[00:05:36] Speaker 01:
And when I'm reading the transcript, I'm thinking,

[00:05:39] Speaker 01:
that some of it was kind of confusing.

[00:05:41] Speaker 04:
And he has an 11th grade education, but he's been through the court system more than most lawyers have.

[00:05:46] Speaker 01:
Well, he had been through the court system more than once.

[00:05:48] Speaker 01:
That is true.

[00:05:49] Speaker 01:
But that doesn't mean that he can understand the proceedings in the same sort of a way.

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He's done pretty well in the pro se's and such, hadn't he?

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Didn't he file a lot of pro se motions?

[00:05:59] Speaker 01:
He did file a lot of pro se motions.

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I would not say that they were all that understandable.

[00:06:04] Speaker 01:
And I would say that they were ambiguous.

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And I would say that based on his background and his level of education, that it was a confusing question.

[00:06:12] Speaker 04:
What is it today that he didn't mean to waive in district court?

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Exactly what right do you say he was deprived of?

[00:06:20] Speaker 01:
Whether he could appeal, and whether he could appeal generally, and whether he could appeal the sentence.

[00:06:25] Speaker 03:
But then we get to your reply brief.

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where you state, quote, the fact that Mr. Glover understood that he did not give up rights in these two areas does not mean he understood the rights he was waiving.

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And reference in your reply brief at three to four is to the right of appeal of his sentence and a claim of ineffective assistance of counsel, which from the transcript

[00:06:59] Speaker 03:
that I read, that Judge Wilkins referenced, were the two things that your client raised with the district court?

[00:07:09] Speaker 01:
Well, I think he raised more than that.

[00:07:11] Speaker 01:
I think he raised the fact that he was confused and concerned about all of the appellate rights that he was waiving.

[00:07:17] Speaker 01:
And I think that he was confused generally.

[00:07:20] Speaker 01:
And he never said that he wasn't.

[00:07:22] Speaker 01:
The whole time, he kept trying to tell the court that he didn't understand what was going on.

[00:07:28] Speaker 01:
I think that the transcript reads like a bunch of lawyers and a judge who are trying to get through it because there is a difficult defendant in front of them and not trying to assuage his concerns and make sure that he gets all the rights that he is supposed to be getting.

[00:07:44] Speaker 05:
So, just so that I'm clear, your brief says that the relief that you're requesting is remanding for further proceedings.

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Does your client want to vacate this guilty plea and go to trial at this point?

[00:08:01] Speaker 01:
He does.

[00:08:03] Speaker 05:
OK.

[00:08:04] Speaker 04:
Wasn't he offered that option in the, I couldn't tell you the page of the transcript, but didn't Judge Hogan say, we can start this trial Wednesday if you want to withdraw your plea?

[00:08:14] Speaker 01:
The judge did say to him, we can start this trial and you can get a sentence of life imprisonment with no chance of parole, which at one point during there.

[00:08:23] Speaker 04:
I'm sorry?

[00:08:23] Speaker 04:
That was true, was it not?

[00:08:26] Speaker 01:
That was one of the possibilities.

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I don't think it was a necessary way to state it.

[00:08:31] Speaker 04:
You don't think he should have been warned of that?

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He knew what the chance was, what the sentence was.

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He had already been sentenced.

[00:08:38] Speaker 04:
He knew it then, and he didn't take the trial then.

[00:08:41] Speaker 04:
Why should we let him come in now and wipe the slate and start the trial?

[00:08:47] Speaker 01:
Because he thought he could take the trial

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take the deal, take the plea, and then still be able to appeal.

[00:08:55] Speaker 01:
And after and- He is appealing right now.

[00:08:59] Speaker 01:
Yes.

[00:09:00] Speaker 01:
Partly, yes.

[00:09:01] Speaker 05:
I mean, there's no, what was he not able to appeal that he thought that he could appeal?

[00:09:11] Speaker 01:
He is able to appeal right now on the ineffective assistance of counsel.

[00:09:18] Speaker 01:
which we have in our brief.

[00:09:19] Speaker 01:
And he's able to appeal right now whether the sentence was illegal.

[00:09:22] Speaker 01:
He's not able to.

[00:09:23] Speaker 04:
In fact, in most circuits, wouldn't that be raised in a habeas-type proceeding, 2255, rather than in direct appeal?

[00:09:30] Speaker 01:
That's correct.

[00:09:31] Speaker 04:
So we didn't need that.

[00:09:32] Speaker 04:
But anyhow, he's appealing now.

[00:09:35] Speaker 04:
What is it he wanted to appeal that he didn't get to appeal?

[00:09:37] Speaker 01:
The fact that he took this plea.

[00:09:39] Speaker 01:
He didn't understand what rights he was giving up when he took this plea.

[00:09:43] Speaker 01:
And he didn't understand that he wouldn't be able to appeal the plea.

[00:09:47] Speaker 03:
So let me ask you, you rely heavily on our decision in US versus Gulen.

[00:09:52] Speaker 03:
That's the way we pronounce it.

[00:09:54] Speaker 03:
How have you made a colorable claim of ineffective assistance of counsel?

[00:10:00] Speaker 01:
Because anyone who goes to a plane who stands there and says, I don't understand this, I don't understand this, I don't understand this is

[00:10:08] Speaker 01:
That's ineffective assistance of counsel if his counsel is then not explaining it to him properly so he can understand it so he knows what rights he's giving up.

[00:10:16] Speaker 01:
And his counsel just tried to get him through that plea process without, again, without explaining what those rights that he was giving up were.

[00:10:26] Speaker 01:
So that's ineffective assistance of counsel.

[00:10:28] Speaker 03:
What do you think your burden is on appeal when you raise on behalf of your client a claim of ineffective assistance of trial counsel?

[00:10:36] Speaker 01:
I think that... Can you just say it?

[00:10:39] Speaker 01:
I'm sorry?

[00:10:39] Speaker 03:
Can you just say it and that's all?

[00:10:42] Speaker 01:
The burden is whether counsel is acting as counsel under the Strickland standard and whether he was afforded assistance of counsel and he was not.

[00:10:53] Speaker 03:
So you think that's what Gullen meant by a colorable claim?

[00:10:57] Speaker 03:
Yes.

[00:10:57] Speaker 03:
Just raising it.

[00:10:59] Speaker 01:
Just having enough, having, no, not just raising it, but having some proof on it, and which he did based on his statements at the hearing.

[00:11:06] Speaker 01:
There are no further questions?

[00:11:10] Speaker 03:
Well, let me just follow up on that.

[00:11:11] Speaker 03:
His counsel stated on the record, presumably not under oath, but still as an officer of the court, that he had explained things to his client, and that at least his attorney thought his client understood

[00:11:29] Speaker 03:
what he was giving up by entering this plea.

[00:11:33] Speaker 03:
So with that record, my question is, what is your colorable claim?

[00:11:38] Speaker 03:
And your response to me is, my client kept saying he didn't understand.

[00:11:43] Speaker 01:
Yes, because it's not the attorney's understanding.

[00:11:47] Speaker 01:
It's my client's understanding.

[00:11:48] Speaker 01:
No, no.

[00:11:48] Speaker 03:
I'm focusing on your colorable claim.

[00:11:52] Speaker 03:
right, and the district court went on at some length with your client about what he didn't understand.

[00:11:59] Speaker 03:
His attorney told the district court he had reviewed this with his client, and the attorney thought he understood what rights he was waiving.

[00:12:11] Speaker 03:
Correct.

[00:12:12] Speaker 03:
So if we remand this to the trial court, what's going to happen?

[00:12:18] Speaker 01:
I don't believe it's the attorney's

[00:12:20] Speaker 01:
right to say that his client understood?

[00:12:22] Speaker 01:
I think it's the defendant's right to say whether he understands what he's waving.

[00:12:26] Speaker 01:
Of course.

[00:12:27] Speaker 03:
But if the attorney tells the district court, I have reviewed this with my client, and that at least, in my opinion, as his attorney, I think my client understands,

[00:12:39] Speaker 03:
On appeal, do you have any burden to say anything that would indicate that that statement as an officer of the court is not credible, and therefore you have raised a colorable claim?

[00:12:55] Speaker 01:
Not that the attorney's statement is not colorable.

[00:13:00] Speaker 01:
It's that my client

[00:13:04] Speaker 01:
was clearly confused and clearly didn't understand.

[00:13:07] Speaker 01:
And I think we've raised enough of a question as to his understanding.

[00:13:10] Speaker 03:
Thank you.

[00:13:11] Speaker 03:
Let us hear from counsel for the government.

[00:13:16] Speaker 02:
Good morning, Your Honor.

[00:13:17] Speaker 02:
May it please the court?

[00:13:18] Speaker 02:
Eric Hansford for the United States.

[00:13:22] Speaker 02:
As to whether the defendant understood his

[00:13:26] Speaker 02:
sentence appeal rights, which were the only rights that he expressed any confusion about during the plea proceeding, this was the precise exchange with the district court.

[00:13:35] Speaker 03:
It was not a... Well, you heard counsel this morning, and we went over that, and counsel basically rejects that view of the record.

[00:13:41] Speaker 03:
What's your response?

[00:13:43] Speaker 02:
So I think the record is clear that on pages 30 to 31 of the transcript, the question is, you understand you do have some appeal rights.

[00:13:54] Speaker 02:
You didn't waive everything.

[00:13:55] Speaker 02:
You understand that.

[00:13:57] Speaker 02:
I talked about you can appeal the illegal sentence, ineffective assistance of counsel.

[00:14:01] Speaker 02:
You still have those rights.

[00:14:03] Speaker 02:
The defendant replies, right.

[00:14:05] Speaker 02:
That's not an improper compound question that's explaining just the sentence appeal right.

[00:14:11] Speaker 02:
and the defendant never suggested below that there was an improper compound question.

[00:14:17] Speaker 02:
It also bears mentioning that the defendant has no conceivable interest in appealing his sentence here.

[00:14:25] Speaker 02:
This was a Rule 11 C1C plea.

[00:14:28] Speaker 02:
He bargained for a fixed term of 21 years of imprisonment.

[00:14:32] Speaker 02:
Had the judge given any other sentence, he would have had a right to withdraw from the plea.

[00:14:38] Speaker 02:
And he received the 21-year sentence.

[00:14:41] Speaker 02:
So the defendant's interest in appealing that sentence, he has no interest in that.

[00:14:48] Speaker 02:
It's also, the sentence appeal waiver does not go to the validity of the plea.

[00:14:55] Speaker 02:
if a defendant does not understand a sentence appeal waiver, this court has left pleas in place and allowed a defendant to appeal his sentence.

[00:15:05] Speaker 02:
So in other words, if the defendant did not understand his sentence appeal waiver, it would just be severed, and he would be allowed to pursue an appeal of his sentence.

[00:15:16] Speaker 05:
As to his misunderstanding of... We said that that's the only remedy, or has that just been a remedy that we have employed?

[00:15:25] Speaker 02:
This court has not said it's the only remedy.

[00:15:29] Speaker 02:
It is just a remedy that this court has employed.

[00:15:32] Speaker 02:
The 11th Circuit, 1st Circuit, and 2nd Circuit, in cases we cite in the brief, has applied that remedy.

[00:15:38] Speaker 02:
And I think it's also a remedy that makes sense because

[00:15:43] Speaker 02:
A defendant can, as part of a plea, retain the right to appeal a sentence or waive that right.

[00:15:48] Speaker 02:
So it is separate from whether or not a defendant is pleading guilty.

[00:15:52] Speaker 02:
It's not like the right to confrontation or self-incrimination or trial by jury that inherently in pleading guilty, a defendant is waiving.

[00:16:02] Speaker 02:
So it does make sense to sever that.

[00:16:04] Speaker 05:
It seems that the defendant here is essentially making an argument that when you combine the confusion over the appeal rights with the fact that the defendant said that he was not satisfied with his counsel and had never been satisfied with his counsel,

[00:16:22] Speaker 05:
And when you combine that with the fact that the defendant said that he felt coerced into taking this plea because his counsel would not file motions on his behalf, and when you combine that with the fact that the district court said you will get a sentence of life imprisonment without parole if you are convicted at trial, instead of saying that that may happen, that may occur,

[00:16:51] Speaker 05:
that when you combine all of those together that this was an involuntary plea.

[00:17:01] Speaker 05:
What's your response to that?

[00:17:04] Speaker 02:
So I think I'll go through those one by one.

[00:17:06] Speaker 02:
First, as to the defendant's claim that he's confused about his appeal rights more generally, I don't think the record shows that.

[00:17:16] Speaker 02:
It really is focused on the sentence appeal rights.

[00:17:19] Speaker 02:
He's also giving up his right to appeal a sentence or

[00:17:23] Speaker 02:
appeal a conviction after trial as part of the plea.

[00:17:26] Speaker 02:
It's the other appellate right that someone gives up as part of a plea.

[00:17:29] Speaker 02:
The defendant expressed no confusion about that.

[00:17:32] Speaker 02:
It really is focused on the sentence appeal rights here.

[00:17:34] Speaker 02:
And Judge Hogan did go over that with the defendant at the end of the plea proceeding.

[00:17:42] Speaker 02:
As to defendant saying he was unsatisfied with counsel, he can raise ineffectiveness claims.

[00:17:49] Speaker 02:
He did retain that right under the plea, but Judge Hogan said, look, you've had 11, I think Judge Hogan said nine, but the record shows defendants had 11 different counsel during the course of his plea or his case.

[00:18:04] Speaker 02:
And Judge Hogan said he'd appointed more counsel for a defendant than any other defendant in his time on the bench.

[00:18:11] Speaker 02:
So whether in the typical case a defendant's unhappiness with counsel should give a court pause, I think in this case,

[00:18:21] Speaker 02:
Judge Hogan had good reason to accept that defendant was, in defense counsel's terms, chronically dissatisfied with counsel.

[00:18:31] Speaker 05:
Doesn't the district court have an obligation if a defendant says during a plea colloquy that I'm not satisfied with my counsel to inquire further to see whether there's a basis for that and whether that's affecting the voluntariness of the plea?

[00:18:48] Speaker 02:
Well, Judge Hogan did inquire further.

[00:18:50] Speaker 02:
He asked, why are you dissatisfied with counsel?

[00:18:54] Speaker 02:
The defendant told him because counsel had not filed this motion to dismiss the indictment based on the truck bug evidence.

[00:19:00] Speaker 02:
Judge Hogan then turned to counsel and said, why haven't you filed that motion?

[00:19:03] Speaker 04:
It failed to move for the minutes of the grand jury based on the truck bug.

[00:19:08] Speaker 02:
That's right.

[00:19:09] Speaker 02:
And based on what defendant was saying, it seemed to be setting up a motion to dismiss the indictment based on the truck bug evidence.

[00:19:16] Speaker 02:
So he never said that specifically.

[00:19:18] Speaker 02:
But when Judge Hogan asked counsel why he hadn't filed that motion, counsel said he'd considered filing it.

[00:19:24] Speaker 02:
And they'd filed every motion that they thought was otherwise or ethically appropriate.

[00:19:30] Speaker 02:
So in other words, counsel was saying this was a frivolous motion, which indeed it was a frivolous motion under the Supreme Court.

[00:19:37] Speaker 04:
Have you ever seen a defense counsel file a motion for the grand jury minutes?

[00:19:43] Speaker 02:
I have not seen that motion.

[00:19:44] Speaker 02:
And I think here.

[00:19:45] Speaker 05:
I filed one when I was a public defender.

[00:19:48] Speaker 02:
But I think here what the defendant was trying to set up in terms of a motion to dismiss the indictment is foreclosed by Supreme Court precedent and this court's precedent, which has said improper evidence going before a grand jury in violation of the Wiretop Act does not give a right to dismiss the indictment.

[00:20:11] Speaker 04:
The failure of evidence for the grand jury is subsumed when there's been a trial and a guilty verdict, or presumably when there's been a guilty plea.

[00:20:19] Speaker 02:
That's right, Your Honor.

[00:20:21] Speaker 02:
And it's become even more frivolous since then.

[00:20:24] Speaker 02:
given the Supreme Court's recent decision in Dada, which overrules this court's decision in Glover 1, makes clear that the truck bug evidence here actually was proper evidence, should not have been suppressed.

[00:20:37] Speaker 02:
And so appellant would plainly fail to show prejudice in counsel failing to file that motion.

[00:20:44] Speaker 02:
But under this court's decision in Pollard,

[00:20:47] Speaker 02:
A defendant's dissatisfaction with his attorney does not render a plea legally involuntary.

[00:20:54] Speaker 02:
Pollard says the only things that can render a plea legally involuntary are force, threats, misrepresentation, or improper promises like bribery.

[00:21:03] Speaker 02:
This is none of those.

[00:21:05] Speaker 03:
So following up on Judge Wilkins' question, when Mr. Glover said he felt coerced, the district court

[00:21:14] Speaker 03:
explained, well, that's not exactly what he was referring to and went on to talk about physical threats and the like.

[00:21:20] Speaker 03:
But did the district court have any obligation to examine what Mr. Glover meant when he said he was coerced?

[00:21:30] Speaker 02:
Well, I think Judge Hogan understood, and appellant is clear on appeal, that what he meant by feeling coerced is feeling forced to plead guilty based on the failure to file that motion.

[00:21:44] Speaker 02:
appellant on page 6 of his reply brief makes clear that that was the claim of coercion, which is what Judge Hogan understood.

[00:21:51] Speaker 02:
So Judge Hogan had already inquired into that.

[00:21:54] Speaker 02:
Just on the last part of Judge Wilkin's question about Judge Hogan saying that the defendant was facing life without parole if he went to trial, this is a case where the defendant had already gone to trial before Judge Hogan.

[00:22:09] Speaker 02:
That is the sentence he received.

[00:22:12] Speaker 02:
based on the guidelines, calculations, and the plea.

[00:22:14] Speaker 02:
That's also what his guideline sentence would have been had he not gotten the acceptance of responsibility points here.

[00:22:24] Speaker 05:
The guidelines range would have provided for life without parole.

[00:22:27] Speaker 05:
But of course, under Booker, the district judge didn't have to give him that, right?

[00:22:34] Speaker 02:
That's right.

[00:22:35] Speaker 02:
I don't think Judge Hogan said you will definitely get life without parole if you go to trial.

[00:22:41] Speaker 05:
I think what he said… He didn't use the words definitely, but he said you will, right?

[00:22:47] Speaker 02:
I guess what I'm seeing is on page nine of the transcript, the guilty plea gives you an opportunity to serve a shorter period of time certainly than life without parole if you're going to accept it.

[00:22:59] Speaker 02:
I'm not going to force you to accept any guilty plea if you don't want to.

[00:23:03] Speaker 02:
And I think the trial court actually has an obligation to make sure that the defendant understands the consequences both of accepting a guilty plea

[00:23:12] Speaker 02:
and of not accepting a guilty plea.

[00:23:14] Speaker 02:
So if the defendant does not realize that he's facing a likely sentence of life without parole if convicted, I think that would also be a problem here.

[00:23:25] Speaker 02:
And so you're choking.

[00:23:28] Speaker 05:
So at one point, the district court said,

[00:23:32] Speaker 05:
But we're here today to talk about the guilty plea to resolve the charges against you so you don't go to trial and if you're convicted you would get a sentence of life without parole.

[00:23:44] Speaker 05:
That's at 78, 79 of the appendix.

[00:23:50] Speaker 02:
I don't think that, I mean, I think in the full context, Judge Hogan was not saying that he would definitely be getting a sentence of life without parole if he did not plead guilty.

[00:24:02] Speaker 02:
But I do think that was going to be a likely consequence of the defendant pleading guilty in this case.

[00:24:09] Speaker 02:
But I don't read Judge Hogan as saying unless you plead.

[00:24:11] Speaker 05:
He said you would get a sentence.

[00:24:13] Speaker 05:
What's unclear about that?

[00:24:17] Speaker 02:
Well, I think just after that, that's where he says, the guilty plea gives you an opportunity to serve a shorter period of time, certainly, than life without parole.

[00:24:28] Speaker 02:
So I think it's clear in context he's saying, this is the likely sentence that you are facing, not the sentence you will definitely face.

[00:24:35] Speaker 02:
But I do think that was the defendant's likely sentence that he was facing here, is also the defendant had already

[00:24:43] Speaker 02:
said that he wanted to enter this plea, he'd already indicated that he did want to do that.

[00:24:49] Speaker 02:
And so the idea that this was somehow influencing his decision, I don't think can be squared with the record here.

[00:24:56] Speaker 03:
If the court were to conclude that the coercion was in respect to the point you've been exploring with Judge Wilkins, would a remand be appropriate?

[00:25:09] Speaker 02:
I don't think that a remand would be appropriate.

[00:25:13] Speaker 03:
Would the setting aside the plea be appropriate?

[00:25:17] Speaker 02:
I think if the court were to conclude that he had been coerced into pleading guilty based on a threat, that he would be.

[00:25:27] Speaker 02:
Yes, I think that would.

[00:25:29] Speaker 03:
A promise that if you go to trial, you're getting life without.

[00:25:33] Speaker 02:
I do think that would be probably the appropriate remedy here.

[00:25:37] Speaker 02:
I do want to note the defendant does not make the argument that he felt coerced into pleading guilty by that statement by Judge Hogan.

[00:25:45] Speaker 02:
And I do think Judge Hogan's statement is not a threat.

[00:25:49] Speaker 02:
What Brady recognizes is that a threat

[00:25:52] Speaker 02:
of exercising your rights to go to trial, a threat to give a higher sentence based on that can create coercion.

[00:26:01] Speaker 02:
But that just giving factual information about the case is not going to create coercion.

[00:26:06] Speaker 02:
And indeed, appellant's counsel should have been telling him that he was likely facing a sentence of life without parole if he did go to trial in this case.

[00:26:16] Speaker 04:
Before the oral arguments this morning, have you understood the defendant to be asking to withdraw the plea and go to trial?

[00:26:25] Speaker 02:
I think it was unclear exactly what the defendant was asking for.

[00:26:28] Speaker 02:
I do think we should put on the record that the defendant is

[00:26:36] Speaker 02:
incurring or taking on a pretty significant litigation risk in asking to set aside the plea given the Supreme Court's recent DADA decision, which makes clear that the truck bug evidence actually is admissible.

[00:26:47] Speaker 02:
So in other words, the record at a retrial could well be the same record that he was convicted on the first time.

[00:26:54] Speaker 02:
He was given a plea in a world where the government understood this truck bug evidence was not admissible.

[00:27:01] Speaker 02:
now under Supreme Court precedent, explained that that truck bug evidence would be admissible.

[00:27:08] Speaker 02:
If there are no further questions, we'd ask this court to affirm.

[00:27:11] Speaker 03:
Thank you.

[00:27:11] Speaker 03:
Council for Appellant.

[00:27:15] Speaker 01:
I agree that Mr. Glever has taken on a significant risk with this appeal, but it's his risk to take on.

[00:27:20] Speaker 01:
It's not mine to take on.

[00:27:22] Speaker 01:
It's not the government's take on.

[00:27:23] Speaker 01:
It's not the government's to say that he shouldn't take it on.

[00:27:26] Speaker 04:
Did he, in fact, before today ever make it clear that what he wanted was to strike the plea and go to trial?

[00:27:32] Speaker 01:
Absolutely.

[00:27:33] Speaker 04:
When did he do that?

[00:27:34] Speaker 04:
I didn't read the relief frayed in your brief as being that clear as to what it was he wanted.

[00:27:44] Speaker 04:
Wanted it remanded for further proceedings.

[00:27:47] Speaker 01:
Well, I thought that it was clear throughout the brief because that's what we've been arguing for and that would be what it was under several of these points.

[00:27:57] Speaker 04:
He actually offered that at the plea hearing.

[00:28:00] Speaker 04:
I mean, the judge said we can just not take the plea and go to trial next Wednesday.

[00:28:04] Speaker 01:
He did, but he also followed that up with threatening him with a life without parole.

[00:28:09] Speaker 01:
And I will say that

[00:28:11] Speaker 01:
Although the government said we did not argue in our brief on page 20 of our brief, we did say the court seemed to threaten Mr. Glover with the life imprisonment if he did not, not only not allaying Mr. Glover's feelings, but also further forcing him

[00:28:24] Speaker 01:
to make a decision that he seemed ill-prepared to accept.

[00:28:27] Speaker 05:
Is it really a threat when he's already done it?

[00:28:31] Speaker 05:
He's already weighed all of the 3553A factors and the guidelines and everything else?

[00:28:38] Speaker 01:
And gone through a trial and been sentenced to life without parole and then had it overturned.

[00:28:42] Speaker 01:
It is still a threat because he did say, as Your Honor mentioned, that he would be sentenced to this rather than he could be sentenced to this, or this is usually in these types of proceedings, this is the most that the law allows, and that is not what was said to him.

[00:28:57] Speaker 01:
It was said to him, you can either take this plea or you can be sentenced to life without parole.

[00:29:01] Speaker 01:
My client believes he can go to trial and be vindicated and get nothing.

[00:29:05] Speaker 05:
Well, I mean, that goes without saying.

[00:29:08] Speaker 05:
I mean, the judge doesn't have to, nothing in Rule 11 or in our jurisprudence says that the judge has to reiterate that.

[00:29:16] Speaker 05:
I mean, that goes without saying.

[00:29:18] Speaker 05:
I guess my point here is that, is it appropriate to say, to construe what the district court said here is a threat when the district court was merely