[00:00:00] Speaker 02: Good morning. [00:00:24] Speaker 07: I would like to reserve two minutes. [00:00:27] Speaker 07: This case has a swirl of complicated issues, and then there's one issue that is crystal clear, and that is the failure of the District Court to conduct a proper Rule 11 hearing. [00:00:36] Speaker 07: Specifically, the District Court failed to meet Rule 11b1g and 11b3, and appellant, like the defendant in U.S. [00:00:44] Speaker 07: v. McCarthy, unknowingly and unintelligently pled guilty when appellant lacked necessary mens rea. [00:00:52] Speaker 07: The district court conducted what amounted to a two-question colloquy, which were yes or no questions, that failed to establish that the appellant understood the remand array requirement of 7202. [00:01:01] Speaker 07: This court noted the potential for harm from such a limited colloquy in U.S. [00:01:06] Speaker 07: v. Ford, where a defendant pled guilty to a fundamental misunderstanding of what the statute required. [00:01:13] Speaker 07: Now, the government will say that there is a known legal duty, and the government used that phrase, but that's an obtuse phrase. [00:01:20] Speaker 07: Indeed, the Supreme Court needed to clarify what it meant in US v. Ratsliff. [00:01:24] Speaker 07: To a lay person, it sounds like known legal duty means a financial obligation. [00:01:29] Speaker 07: Do I have a known legal duty to pay my mortgage? [00:01:32] Speaker 07: I think I do. [00:01:33] Speaker 07: Are there consequences if I don't? [00:01:35] Speaker 07: Yes, but those consequences aren't a felony conviction, and they're certainly not prison time. [00:01:41] Speaker 07: Seventh Circuit and U.S. [00:01:42] Speaker 07: v. Fry held that a defendant must understand the law in relation to the facts and the plea must be an intelligent choice. [00:01:49] Speaker 07: As the appellant didn't understand the mandatory requirement, not relying on, and did not understand that relying on the advice of counsel was an absolute offense, the plea was not intelligent. [00:02:00] Speaker 07: There is no fundamental reason why an intelligent, adequately informed defendant would have been guilty in this case because no crime had been committed. [00:02:09] Speaker 07: Now this district court in U.S., or excuse me, the district court, per this court in U.S. [00:02:15] Speaker 07: Washington, must determine also that there's a factual basis for the plea. [00:02:20] Speaker 08: There was no evidence that... Could we just talk for a minute about... Sure. [00:02:23] Speaker 08: ...Mens rea? [00:02:24] Speaker 08: Yes. [00:02:25] Speaker 08: So if I read the colloquy correctly... [00:02:29] Speaker 08: The district court put on the record and the defendant acknowledged that the defendant knew about the obligation to submit the payroll taxes and knowingly and voluntarily failed to do so. [00:02:50] Speaker 08: Why doesn't that describe the correct mens rea for willfulness? [00:02:56] Speaker 07: Well, because as the Supreme Court ruled in Ratliff, based on what they had said what a non-legal duty is, a defendant has to know that the action they're taking is a criminal action. [00:03:09] Speaker 07: They have to understand that it violates a law, that it's a fraudulent attempt to deny the money to the federal government. [00:03:17] Speaker 07: That's not the case here. [00:03:18] Speaker 07: In this case, I had an understanding that, based on the advice of counsel, that I would be able to pay it at a later date. [00:03:27] Speaker 07: That means I didn't understand that the actions I was taking were a criminal action by delaying the payment. [00:03:33] Speaker 03: This is an understanding you had from the attorney who represented you at the proceeding? [00:03:41] Speaker 07: Yes. [00:03:43] Speaker 07: I'm sorry, I didn't hear the question. [00:03:45] Speaker 03: This is an understanding you had from the attorney that represented you in the proceeding? [00:03:51] Speaker 07: I had a representation from previous counsel about what my obligations were. [00:03:57] Speaker 07: At no time did they say it was criminal. [00:04:00] Speaker 03: I'm asking you whether this is an understanding you had from Ms. [00:04:04] Speaker 03: Liu. [00:04:05] Speaker 07: Ms. [00:04:05] Speaker 07: Liu did not explain that there was the mens rea requirement. [00:04:12] Speaker 07: I did not object during sentencing because I didn't understand that there was a need. [00:04:16] Speaker 07: I didn't understand that. [00:04:17] Speaker 07: I thought, well, I didn't pay the taxes. [00:04:19] Speaker 07: Oh, well, that's the problem. [00:04:22] Speaker 07: But I did not understand the willfulness requirement that, in fact, that the Supreme Court put out in McCarthy where it says very clearly the defendant has to understand that it's a criminal act. [00:04:33] Speaker 07: You can't, just because of sloppiness or misunderstanding, that's not enough to rise to a criminal act. [00:04:37] Speaker 03: I thought reading your brief you had blamed ineffective assistance of counsel, not on Ms. [00:04:42] Speaker 03: Liu, but on the prior counsel. [00:04:45] Speaker 07: Well, I would argue that the ineffectiveness that came from Ms. [00:04:49] Speaker 07: Liu was based on what happened from Kona Namorado. [00:04:53] Speaker 07: Previous counsel, well, Namorado, well, not previous. [00:04:57] Speaker 03: I thought you had specifically said there was no ineffective assistance of counsel from Ms. [00:05:03] Speaker 03: Liu. [00:05:04] Speaker 07: Well, she relied on the advice. [00:05:06] Speaker 03: Did you not say that in your brief? [00:05:07] Speaker 07: I said that I did not see her actions as being ineffective. [00:05:11] Speaker 07: I think what I meant to indicate is that from Reuben and Gee, the Fourth Circuit cases, and Stroy, the Seventh Circuit cases, that an attorney's efforts can be ineffective even though they didn't have the [00:05:23] Speaker 07: They weren't trying to be effective. [00:05:25] Speaker 07: They weren't, I don't want to call her a bad person. [00:05:27] Speaker 07: I don't want to attack her work, but she simply was relying on what had been done by the other attorney who was still active at that time. [00:05:37] Speaker 07: Now, if that means her assistance was ineffective, then it was. [00:05:40] Speaker 05: That's not my understanding. [00:05:41] Speaker 05: You have not raised any claim that she was ineffective in this case. [00:05:43] Speaker 07: I've not, because I didn't understand that. [00:05:45] Speaker 05: Okay, so we can't, so we, well, so we can't raise it now here in oral argument. [00:05:50] Speaker 05: So your only argument, as I understand it, on effectiveness is that [00:05:58] Speaker 05: was ineffective. [00:06:00] Speaker 07: Well, and by the engagement letters that I signed, he was the one who was supposed to be doing that work, doing all the investigative work, representing me in front of any counsel. [00:06:09] Speaker 05: So focus your ineffective assistance counsel on that person. [00:06:13] Speaker 07: OK. [00:06:13] Speaker 07: And so because I didn't understand, although when I met with him initially, he said there was a tribal case, he did not explain why. [00:06:20] Speaker 07: All further actions flowed from that. [00:06:23] Speaker 07: There was no discussion with [00:06:26] Speaker 07: either Jesse Liu or Tom Pirelli at the other firm about what their requirements were. [00:06:32] Speaker 07: They did not recommend I plead guilty. [00:06:34] Speaker 07: They were concerned about an El Mirado and they actually recommended it. [00:06:37] Speaker 07: They said we can get you additional counsel if you would like because they were prevented from going to trial. [00:06:42] Speaker 07: They weren't supposed to represent me in court at all per the terms of the agreement. [00:06:46] Speaker 07: Nomorado's ineffective assistance to counsel, though, was far more than that. [00:06:50] Speaker 07: There were exculpatory witnesses who could have attested to the fact that I was following the advice of counsel and not paying the taxes. [00:06:57] Speaker 05: Was Nomorado still involved at the time of the plea bargain? [00:07:01] Speaker 07: Yes. [00:07:01] Speaker 07: He engaged in a call with Jesse Liu during the sentencing period, even. [00:07:08] Speaker 05: Did he go over the plea agreement with you? [00:07:12] Speaker 07: No. [00:07:12] Speaker 05: Did you ask him questions about the plea agreement? [00:07:15] Speaker 07: There was a plea offer. [00:07:17] Speaker 05: Did you ask him questions about this plea agreement? [00:07:20] Speaker 07: I asked him questions about the initial plea agreement that I do not know if it varied from this one very much. [00:07:26] Speaker 05: You didn't ask him questions about the plea agreement that you signed? [00:07:29] Speaker 07: I did not ask him questions about the plea agreement that I signed. [00:07:35] Speaker 08: The primary basis for the ineffective assistance charge is the failure to interview the three witnesses. [00:07:44] Speaker 08: But the sentencing memorandum seems to go into some detail about [00:07:50] Speaker 08: what they have said or would have said as exculpatory evidence. [00:07:57] Speaker 07: That's because I personally went and secured the declaration from one of the witnesses. [00:08:03] Speaker 07: From Carolyn Cirallo, there was no declaration. [00:08:06] Speaker 07: All I had is an email that hinted at what she had said. [00:08:09] Speaker 07: And there was nothing from Frederick Robinson, the IRS agent who had committed it, who had done the audit, who said, you're fine. [00:08:16] Speaker 07: Just wait till you're assessed and then you can pay. [00:08:18] Speaker 07: The Kono-Nomurato did interview one witness. [00:08:22] Speaker 07: That's good, but that's not adequate in this case. [00:08:29] Speaker 07: I have two minutes that I'm saving for a battle. [00:08:33] Speaker 07: Do you have any more questions? [00:08:35] Speaker 05: Not right now. [00:08:36] Speaker 07: Thank you. [00:08:44] Speaker 00: May it please the court. [00:08:45] Speaker 00: Council, Tony Axum appearing as amicus on behalf of Mr. Bertram. [00:08:51] Speaker 00: And a defendant's waiver of the right to collaterally attack a conviction or sentence under 28 U.S.C. [00:08:58] Speaker 00: Section 2255 should not generally be enforced. [00:09:01] Speaker 03: Councilman, I suggest that you either raise the podium or raise the mic. [00:09:06] Speaker 03: Yes. [00:09:06] Speaker 03: You're tall. [00:09:10] Speaker 00: Thank you. [00:09:13] Speaker 05: You said should not generally be enforced, so when should they and when should they not be enforced? [00:09:22] Speaker 00: As a general matter, they should not be enforced. [00:09:24] Speaker 05: The writ of habeas... I'm responding to your word general here, so I'm trying to figure out, do you mean just across the board they shouldn't be enforced or that there's some situations where they should be? [00:09:33] Speaker 05: I'm just trying to clarify what you mean by as a general matter. [00:09:39] Speaker 00: I suppose that there is, we accept that there's a presumption that rights can be waived, constitutional rights can be waived. [00:09:48] Speaker 00: Our position is that the right to file a petition for habeas corpus should be inviolable. [00:09:55] Speaker 00: It should be a right that cannot be waived. [00:09:57] Speaker 00: Why? [00:09:59] Speaker 08: Right to trial is inviolable in the same way. [00:10:05] Speaker 00: I would disagree. [00:10:08] Speaker 00: Right to habeas corpus, first of all, trial rights are contained in the Constitution. [00:10:13] Speaker 00: The writ of habeas corpus doesn't actually appear. [00:10:16] Speaker 00: It appears by implication in the suspension clause. [00:10:20] Speaker 00: That clause says the privilege of the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion, the public safety may require it. [00:10:31] Speaker 00: So the writ of habeas corpus is a fail state. [00:10:34] Speaker 00: It's the backstop. [00:10:35] Speaker 00: It is the thing that ensures that someone is not impartial. [00:10:40] Speaker 03: You're certainly not suggesting that a waiver negotiated by the U.S. [00:10:49] Speaker 03: writ of habeas corpus? [00:10:52] Speaker 00: It is executive action seeking to suspend the writ of habeas corpus, yes, in each individual case. [00:10:59] Speaker 00: If the court is asking generally whether the government should have authority to insist on these waivers, our position is that they shouldn't. [00:11:10] Speaker 00: The court also should not implicate itself by enforcing them. [00:11:15] Speaker 05: How often do you see these waivers? [00:11:17] Speaker 05: They are now included in all plea agreements. [00:11:23] Speaker 05: All plea agreements in this district? [00:11:25] Speaker 00: Currently. [00:11:26] Speaker 00: I would venture to say throughout the country they have become popular. [00:11:34] Speaker 04: Do you generally have any ability to negotiate over those terms? [00:11:39] Speaker 00: No. [00:11:40] Speaker 00: The government characterizes the plea, these both sentencing appeal waivers and 2255 waivers as bargaining chips. [00:11:49] Speaker 00: I can't state strongly enough that they are not bargaining chips at all. [00:11:52] Speaker 00: They are preconditions. [00:11:54] Speaker 00: You have to agree to the plea waiver. [00:11:55] Speaker 00: You have to agree to the 2255 waiver to have any negotiation in the plea process. [00:12:06] Speaker 00: It's simply a case of the government having a tremendous amount of leverage and the defendant having no leverage, and it's a take it or leave it situation. [00:12:17] Speaker 03: Well, of course you have the basic leverage of going to trial, which you always have. [00:12:22] Speaker 00: We always have leverage of going to trial. [00:12:25] Speaker 00: That's always been your basic leverage. [00:12:27] Speaker 05: That comes with a lot of extra risk, doesn't it? [00:12:30] Speaker 00: I'm sorry? [00:12:30] Speaker 05: Comes with a lot of extra risk. [00:12:33] Speaker 00: Not every defendant wants to go to trial. [00:12:35] Speaker 00: I'm sure that's true. [00:12:39] Speaker 00: No, I mean, if we're talking about negotiations, if we're talking about what benefit you get for giving up certain rights, [00:12:48] Speaker 00: There is no benefit that the defendant is getting. [00:12:51] Speaker 00: The government has added sentencing appeal waivers and collateral attack waivers with no corresponding benefit over the years. [00:12:58] Speaker 00: And if they chose to add something else tomorrow, defendants would accept it because they have no choice, because they're in the weak position. [00:13:05] Speaker 00: These are unilateral decisions by the government. [00:13:07] Speaker 00: And as I said before, these are preconditions. [00:13:10] Speaker 00: These are not conditions that can be negotiated out. [00:13:15] Speaker 08: If we think that these waivers are generally enforceable, is there any feature of this case that makes this waiver particularly troublesome? [00:13:29] Speaker 08: To me, the two important aspects of this one are, one is that all of the relevant facts seem to have been known [00:13:43] Speaker 08: by the defendant at the time of the plea, and a second is that there was no intervening change in law, which might create a special circumstance. [00:13:53] Speaker 08: So what is it about this case that makes this one more problematic, or are you just resting on your argument that we should never enforce? [00:14:06] Speaker 00: I don't think that this case is particularly compelling or unusual, and it's unnecessary for the court to actually reach, if the court examines the substantive nature of the claims and decides more to rule against Mr. Bertram, I would think that it's unnecessary for the court to actually reach the waiver issues in this case. [00:14:35] Speaker 05: What about the plea colloquy as it addressed the 2255 waiver here? [00:14:49] Speaker 05: Was that sufficient? [00:14:51] Speaker 00: The plea colloquy was not sufficient. [00:14:54] Speaker 00: The district judge essentially told the defendant that you will be giving up your 2255 rights. [00:15:01] Speaker 00: I would say that that means almost nothing to a defendant. [00:15:06] Speaker 00: It would be the equivalent of saying, you're giving up your trial rights. [00:15:09] Speaker 00: And the defendant may know more about giving up your trial rights, but a colloquy in order for the court to be assured that the defendant is entering the plea knowingly and intelligently aware of the risks as this court has required, [00:15:26] Speaker 00: would require an explanation of 2255. [00:15:30] Speaker 00: There's absolutely no explanation here. [00:15:34] Speaker 00: So in this case in particular, the government can't establish that Mr. Bertram knowingly and intelligently gave up his 2255 rights. [00:15:49] Speaker 00: And in general, I think it's difficult for courts to articulate the [00:16:00] Speaker 00: what exactly a defendant is giving up. [00:16:03] Speaker 00: And it's partially because of something that Judge Katz has referred to. [00:16:09] Speaker 00: There are facts that are often unknown or unknowable of the law changes. [00:16:15] Speaker 00: And in that sense, the law is sometimes unknown and unknowable. [00:16:20] Speaker 00: habeas corpus is designed to account for that. [00:16:25] Speaker 00: It is designed as the failsafe to ensure that someone is not incarcerated unjustly when there are facts or law that may have changed, may come to light, may be different from the time when the defendant was found guilty. [00:16:46] Speaker 03: Well, newly discovered evidence is an exception. [00:16:49] Speaker 03: Even in this case? [00:16:51] Speaker 00: In this case, newly discovered evidence is an exception, and we appreciate that. [00:16:56] Speaker 00: But the question of whether they should generally be enforced, if the court... newly discovered evidence [00:17:11] Speaker 00: would still need to establish some innocence on the part of the defendant. [00:17:20] Speaker 00: And once you reach that point, it's clear that there is some miscarriage of justice. [00:17:30] Speaker 00: Habeas corpus is designed to correct miscarriages of justice. [00:17:35] Speaker 00: So if the exception is going to be that [00:17:39] Speaker 00: you're waiving your habeas corpus rights unless there is a miscarriage of justice, it's not really a waiver. [00:17:51] Speaker 00: And it only becomes more confusing for the defendant. [00:17:55] Speaker 00: Again, the district court here didn't explain to the defendant what a miscarriage, there's no discussion whatsoever. [00:18:07] Speaker 00: If we're only going to tie it to the facts of this case, the defendant did not knowingly and intelligently waive his right to file a writ of habeas corpus. [00:18:21] Speaker 05: The defendant had the same collateral attack language and the defendant had two attorneys in the pre-plea stage. [00:18:31] Speaker 05: The first attorney failed to communicate a more favorable plea offer to the defendant. [00:18:39] Speaker 05: didn't communicate it at all. [00:18:42] Speaker 05: And then withdrew his counsel and a new counsel came in, this new plea comes in with this collateral attack waiver. [00:18:49] Speaker 05: Would they be able to later bring an ineffective assistance of counsel claim based on the original attorney not having even communicated the more favorable plea offer? [00:19:00] Speaker 05: Because it says that it's tied to ineffective assistance of counsel in entering into the agreement. [00:19:08] Speaker 00: I don't see anything that would prevent the defendant from raising the claim, whether the claim could succeed based on what the second attorney told him and what the court went over in the colloquy. [00:19:20] Speaker 05: It only preserves ineffective assistance of the counsel in entering into, quote, this agreement. [00:19:26] Speaker 05: That's what I'm trying to figure out, if there was ineffective assistance of counsel with respect to a predicate agreement. [00:19:33] Speaker 05: There would have been a better deal. [00:19:35] Speaker 05: Never had a chance of that. [00:19:37] Speaker 05: So waited until the eve of trial, and then they did this settlement. [00:19:39] Speaker 05: It was less favorable by that point. [00:19:43] Speaker 05: Have you ever seen that situation? [00:19:45] Speaker 05: You say this language is pretty boilerplate nowadays. [00:19:49] Speaker 00: No. [00:19:52] Speaker 00: I'm sorry. [00:19:53] Speaker 00: I'm just not equipped to answer. [00:19:57] Speaker 05: OK. [00:19:57] Speaker 05: I didn't have to come up. [00:20:00] Speaker 00: I see that I've exceeded my time unless the court has further questions. [00:20:03] Speaker 05: You're understanding that this, sorry, just one last question. [00:20:06] Speaker 05: This type of language would borrow a claim, say like a Johnson claim, because it preserves newly discovered evidence claims, but it doesn't preserve changes in the law. [00:20:19] Speaker 00: As written, yes, it would bar Johnson claims. [00:20:23] Speaker 00: Now, the government makes a point in its brief suggesting that it would not, because that would represent a miscarriage of justice. [00:20:30] Speaker 00: But then we're right back in the circle. [00:20:33] Speaker 00: If habeas corpus is designed to prevent miscarriages of justice, and there are the exceptions that the government wants, I guess, this court to carve out, [00:20:47] Speaker 00: What are the exceptions? [00:20:49] Speaker 00: The exceptions are unless you have a meritorious habeas corpus claim. [00:20:54] Speaker 00: Well, the court will always have to review the claims to determine whether they're meritorious. [00:21:00] Speaker 00: So I guess we don't think habeas corpus claims should be enforced, but to enforce them by the government's terms are nonsensical. [00:21:17] Speaker 00: It's not actually enforcement. [00:21:23] Speaker 05: Thank you very much. [00:21:36] Speaker 01: Good morning. [00:21:37] Speaker 01: May it please the court, Greg Knapp for the United States. [00:21:40] Speaker 01: The issues for which this court granted a certificate of appealability are the cognizability of Mr. Bertram's actual innocence claim, his selective prosecution claim, and ineffective assistance of counsel. [00:21:50] Speaker 01: As a result, this court does not need to reach the issue of whether or not Mr. Bertram's claim was knowing and voluntary in the sense that he understood what it meant to act willfully. [00:21:58] Speaker 01: However, if this court were to take a very liberal view of the Certificate of Appealability, a very liberal view of what claims Mr. Bertram preserved in his district court filings, it should still not reach the question of whether or not Mr. Bertram's claim was known involuntary, excuse me, his plea was known involuntary, because that claim would be procedurally defaulted. [00:22:17] Speaker 01: In this 2255 action, [00:22:19] Speaker 01: Because Mr. Bertram did not raise on any direct appeal his challenge to the knowing and intelligent nature of the guilty plea that would be procedurally defaulted under Boosley, the United States, under this course decision in Baxter. [00:22:31] Speaker 08: He didn't raise on direct appeal because he's under the plea, right? [00:22:35] Speaker 08: Correct. [00:22:35] Speaker 08: And now he's attacking the plea, so if there's sufficient ground to set aside the plea, I don't know, why would we hold him to the failure to appeal any more than we would hold him to the plea? [00:22:47] Speaker 01: Because a failure to appeal in itself is not caused to excuse a procedural default from 2255. [00:22:53] Speaker 01: That falls directly from this court's decision in Baxter. [00:22:57] Speaker 01: Generally, the Supreme Court recognizes that the perceived futility of raising the claim on direct appeal is now the grounds for not preserving it. [00:23:03] Speaker 05: Not perceived futility is that the plea agreement barred the appeal. [00:23:07] Speaker 05: It seems a bit rich for the government to have an appeal waiver. [00:23:10] Speaker 05: and say you can't appeal, and then later go, you're barred from bringing these claims because you didn't appeal. [00:23:16] Speaker 01: But the plea lever would not have applied to Mr. Burcham's claim that his plea was not knowing and intelligent. [00:23:20] Speaker 01: You can always challenge that. [00:23:22] Speaker 01: That's well established. [00:23:23] Speaker 01: And so there would be no basis in a hypothetical appeal for the government to try to invoke the appeal waiver to challenge the knowing and intelligent nature of the plea. [00:23:30] Speaker 01: Because if the plea hypothetically were not knowing and intelligent, well of course that's challengeable on appeal. [00:23:36] Speaker 01: But because Mr. Bertram did not do that, it would be procedurally defaulted in this 2255 [00:23:50] Speaker 05: get around an appeal waiver otherwise. [00:23:53] Speaker 01: Well, the simple claim, for example, this court's case in Guian, it's like a plea has to be knowing and intelligent. [00:23:59] Speaker 01: And so if it's not, that's an exception to the enforcement of an appeal waiver. [00:24:01] Speaker 05: I thought you normally ran those through ineffective assistance of counsel or the insufficiency of the plea colloquy. [00:24:08] Speaker 05: They had effective counsel, the gold standard plea colloquy, [00:24:20] Speaker 05: They could still then appeal and say it wasn't willing and knowing. [00:24:27] Speaker 01: I'm sure they often are linked to an effective assistant counsel, but I'm just following what this court said in the end that we would not enforce if it's not knowing an intelligence. [00:24:36] Speaker 01: And so in order to proceed on that claim in this 2255 action pursuant to Boosley, Mr. Burchwood would have to pass through the actual innocence gateway. [00:24:44] Speaker 01: And he cannot meet that standard because there's no new evidence that would make it more likely than not that no reasonable juror would find him guilty beyond reasonable doubt. [00:24:54] Speaker 05: Your selected prosecution claim, you argue, is barred by the collateral review waiver. [00:25:04] Speaker 05: I'm wondering if that is just also barred directly by the sentencing agreement itself, the plea itself, even if it didn't have that [00:25:15] Speaker 05: not still be barred by that since in this situation where all the information on which he predicates that claim was known at the time? [00:25:24] Speaker 05: Or is that something that just can't be waived publicly? [00:25:26] Speaker 01: Yes, you don't need the collateral attack waiver. [00:25:29] Speaker 01: There are other grounds. [00:25:30] Speaker 01: First, this is a general matter. [00:25:32] Speaker 01: Mr. Bertram's 2255 petition, in our view, represents an impermissible attempt to collaterally attack a knowing and valid guilty plea. [00:25:40] Speaker 01: And so that's a basic reason. [00:25:42] Speaker 01: Also, with respect to selective prosecution specifically, there's a requirement in the criminal rules that at least with respect to the facts that were known, as Ron refers to, it must be raised pre-trial pursuant to Rule 12 of the criminal rules. [00:25:53] Speaker 01: And again, that claim also would be procedurally defaulted, selective prosecution. [00:25:56] Speaker 01: And so although the collateral attack waiver, in our view, bars Mr. Bertram's first two claims, actual and innocent selective prosecution, the court would not have to rely on that to dispense with those claims. [00:26:07] Speaker 01: And, in fact, perhaps the cleaner way with respect to actual innocence is to merely recognize it's not cognizable under 28 U.S.C. [00:26:15] Speaker 01: 2255. [00:26:17] Speaker 03: Counsel, this is a little bit off point, but the public defender points out that he is concerned about the disparity in bargaining strength between the government and defense counsel. [00:26:36] Speaker 03: decline of trials because we overheard the district judge was saying that defense counsel no longer has the incentive to go to trial. [00:26:50] Speaker 03: The downside risk is too great. [00:26:53] Speaker 03: Is that because, if it's true, is that because of the sentencing guidelines more than anything else? [00:27:01] Speaker 01: I think the sense of guidelines would play a large portion of that. [00:27:04] Speaker 01: It's a combination of the charges that are available as well as the guideline range that would be permissible in relation to those charges. [00:27:11] Speaker 01: That's my assumption. [00:27:12] Speaker 01: I can't speak to what goes into the calculus of a particular defendant. [00:27:16] Speaker 03: No, I'm asking you in gross, why do we see such a paucity of criminal trials? [00:27:25] Speaker 01: I'm afraid I don't know. [00:27:27] Speaker 01: I wasn't frankly even aware that there's been a decline in terms of the – I won't deny that there are incentives, strong incentives for plea deals, but that applies to the government as well. [00:27:38] Speaker 01: I mean, if a secure plea agreement can be arranged, it benefits all parties involved. [00:27:44] Speaker 01: Of course. [00:27:45] Speaker 05: Well, the government doesn't have remotely the risk exposure that the defendant does in these deals. [00:27:50] Speaker 01: I'm sorry? [00:27:51] Speaker 05: The government doesn't have remotely the risk exposure that the charged defendant does in these plea negotiations, right? [00:27:57] Speaker 05: The government might have to go to trial with attorneys who are all on effectively retainer anyhow. [00:28:02] Speaker 05: It doesn't cost them anymore to go to trial rather than plea. [00:28:07] Speaker 05: you know, nobody there is losing their liberty at the end of the day. [00:28:10] Speaker 05: But defendants are facing extraordinary risk. [00:28:15] Speaker 05: And if they're just a little bit, you're not quite poor enough to get an appointed [00:28:20] Speaker 05: attorney, then they can be facing bankrupting themselves and their families if they push this thing to trial. [00:28:26] Speaker 05: And then the sentencing guidelines will knock your guidelines range down for pleading. [00:28:33] Speaker 05: You're not going to get that cooperation. [00:28:35] Speaker 05: You're going to have a higher guidelines just as a result of that, if nothing else, from going to trial. [00:28:40] Speaker 05: So it doesn't seem to me like it's really [00:28:43] Speaker 05: As you said, risk on both sides. [00:28:46] Speaker 01: Well, no, I won't deny that there's a greater personal stake on behalf of the defendant. [00:28:50] Speaker 01: But if anything, I think that would just... There's a personal stake. [00:28:52] Speaker 05: There's a greater stake, a lot more at risk, a lot more to lose than there is on the government side. [00:28:59] Speaker 05: And the government controls the charges. [00:29:02] Speaker 01: That's true. [00:29:02] Speaker 01: That's true. [00:29:03] Speaker 01: I don't think that in any way undermines the enforceability of collateral attack waivers or it really directly relates to any other issue that's raised in this appeal. [00:29:13] Speaker 01: I mean, as this court recognized in Guillen, one of the main benefits of plea gardening from the defendant's perspective, who has a great personal stake in the outcome, is to narrow the range of possibilities to achieve a predicted sentencing outcome that is not the worst case scenario and which gives the defendant value. [00:29:30] Speaker 01: And there's no reason why that reasoning shouldn't transfer equally to a collateral attack waiver. [00:29:34] Speaker 01: And all the other federal circuits that have uphold such waivers have recognized that analogy. [00:29:39] Speaker 05: Defendants have a right to public trials and public proceedings in criminal cases. [00:29:45] Speaker 01: Yes. [00:29:45] Speaker 05: They don't have secret criminal trials in this country. [00:29:48] Speaker 05: Could that be waived? [00:29:51] Speaker 05: Is that one of those constitutional rights you can just waive? [00:29:54] Speaker 05: We'll have secret, please. [00:29:57] Speaker 01: I don't believe so because that would implicate First Amendment protections as well that are of course important to the defendant, but not just the defendant. [00:30:04] Speaker 01: I have not researched that particular question, but I would think that that would be very problematic to waive the right to a public trial. [00:30:09] Speaker 05: So there's public interest in the conduct of criminal trials. [00:30:13] Speaker 05: Are there public interests in having opportunities for review of governmental prosecutions? [00:30:22] Speaker 05: I mean, there is a constitutional right to appeal, and we say it can be waived. [00:30:25] Speaker 05: But it seems to me the reason we have that constitutional right is both for the defendant, but is it also because we try to keep a check on government in criminal cases? [00:30:34] Speaker 01: That very well may be. [00:30:36] Speaker 01: And perhaps those same observations, those same concerns have motivated other courts to carve out appropriate exceptions in appropriate cases to waivers of trial and appeal rights and waiver of collateral tectonics. [00:30:48] Speaker 05: What do you think are the appropriate things that can be carved out? [00:30:50] Speaker 05: Apart from what's in the text, what are the carve outs that [00:30:54] Speaker 05: I'm asking you what the United States government's position is on what the acceptable carve outs are to plea waivers. [00:31:11] Speaker 05: but they're not already contained in the waiver itself. [00:31:13] Speaker 01: I agree with Dianne in the sense that it acknowledged that any waiver must be known in intelligence. [00:31:19] Speaker 01: If there's ineffective assistance of counsel in connection with agreeing to that waiver, that is a permissible cargo. [00:31:26] Speaker 05: What about my hypothetical of the ineffective assistance of counsel that predates this agreement? [00:31:33] Speaker 05: And if didn't offer just didn't communicate to the defendant and even better plea offer early on to save everybody's resources. [00:31:42] Speaker 05: And so now it's even trial. [00:31:44] Speaker 05: This is the one that they get. [00:31:45] Speaker 05: Of course, it's now a less favorable plea agreement. [00:31:48] Speaker 01: I guess the question there would be, does that count as a change of the outcome? [00:31:52] Speaker 01: Because either way, the defendant has pleaded guilty. [00:31:54] Speaker 05: I'm asking you whether that would be allowed or not under the collateral waiver, either as drafted here or in the United States position as to the exceptions that need to be carved out. [00:32:08] Speaker 01: If the alleged and effective assistance did not relate to the six-minute council for the plea agreement that's actually entered, I don't think that would be accepted. [00:32:16] Speaker 01: I have not researched that particular issue. [00:32:18] Speaker 01: Perhaps it would depend on when the six-minute right to the council attached as well. [00:32:22] Speaker 01: So I do not have a definitive answer to that question. [00:32:24] Speaker 05: It seems to me... So I think it's common. [00:32:28] Speaker 05: actually for an indictment not to even be made until it's actually made in conjunction with the entry of the plea agreement. [00:32:37] Speaker 05: And so if you don't have a right to counsel it attaches until the indictment and the whole plea agreement could be negotiated before the right to counsel even attaches. [00:32:49] Speaker 01: It could. [00:32:50] Speaker 05: So that would be a nice way for the government to get out of these challenges, right? [00:32:54] Speaker 05: We don't even have to have ineffective assistance of counsel if we just negotiate everything before we drop the indictment. [00:33:01] Speaker 05: That's the government's position. [00:33:02] Speaker 05: That's okay, too, and nobody can ever look at that again either. [00:33:07] Speaker 03: No, I'm not so sure you wouldn't still have a case of ineffective assistance of counsel. [00:33:13] Speaker 05: Well, before the Sixth Amendment right attaches, I don't know. [00:33:15] Speaker 01: The most recent defendant word on that is from the Sixth Circuit, which recently ruled en banc that there is no right of counsel that attaches pre-indict negotiations. [00:33:24] Speaker 01: The Turner case is what it's called. [00:33:26] Speaker 01: There is a pending cert petition on that question. [00:33:28] Speaker 05: And the government's position on that cert petition? [00:33:31] Speaker 05: The government has not filed an opposition yet, and so I really should defer to... The government was the one that made that argument to the Sixth Circuit en banc. [00:33:40] Speaker 01: Perhaps, yeah. [00:33:44] Speaker 01: I didn't review the government's filings, but yes, that's a reasonable assumption. [00:33:49] Speaker 05: What about when a federal law is subsequently declared unconstitutional? [00:33:54] Speaker 05: There's an exception here for newly discovered evidence. [00:33:57] Speaker 05: Is the government's position that, like the Johnson case or the Class case in the Supreme Court, the argument there? [00:34:12] Speaker 05: or not, that's just part, it's a right they have and they've waived, they've waived it. [00:34:16] Speaker 05: It's constant right, they've waived it, they've waived it. [00:34:17] Speaker 05: That's just how, that's just how the deal was made. [00:34:20] Speaker 01: If, if an intervening change in the law, the Supreme Court decision, establishes that the conduct, the facts to which the defendant plead guilty is no longer a crime, it would seem to me that would be a permissible exception of the miscarriage. [00:34:33] Speaker 05: Why isn't that just something they can waive like everything else? [00:34:38] Speaker 01: That, [00:34:40] Speaker 05: But you don't know the government's position on whether that has to be read into all plea. [00:34:44] Speaker 05: Because you don't write it, you haven't written it in. [00:34:45] Speaker 05: So my assumption is the government's position is they don't have to have that exception. [00:34:52] Speaker 01: I don't disagree with other circuits that have recognized that exception under those circumstances. [00:34:56] Speaker 05: When in fact, a change in the law... You don't disagree or the United States government doesn't disagree? [00:35:03] Speaker 01: In terms of business in the United States, all I can say is that that particular question is not raised by this case because there's no change in the law. [00:35:08] Speaker 01: There's no fundamental fair. [00:35:09] Speaker 01: Here's just a case of trying to take back annoying, intelligent, guilty plea. [00:35:18] Speaker 01: Is there any other questions that the court has for me? [00:35:22] Speaker 05: You still have a minute, though, if you like. [00:35:25] Speaker 01: That's true. [00:35:26] Speaker 01: I guess, just to clarify. [00:35:27] Speaker 01: You don't have to. [00:35:27] Speaker 01: Exactly. [00:35:29] Speaker 01: Since you made the invitation, I'll just briefly state that we're not arguing that the counsel claim is covered by any waiver. [00:35:34] Speaker 01: And so in our view, the simplest way to address that claim is to simply recognize that the alleged deficient performance by Mr. Nomorato predated the Sixth Amendment counsel that attached with Ms. [00:35:43] Speaker 01: Liu. [00:35:43] Speaker 01: And so that's why basically it fails. [00:35:45] Speaker 01: So I'll just state that briefly. [00:35:48] Speaker 01: Thank you for your time. [00:35:49] Speaker 05: Thank you very much. [00:35:53] Speaker 05: We'll give Mr. Bertram two minutes. [00:36:02] Speaker 07: So first is that, as I noted in the reply brief, there is case after case after case where Rule 11 challenges are always looked at at the Court of Appeals, even if it was not brought at the trial level, although it is brought in the 2255, because of the absolute importance of when someone pleads guilty. [00:36:17] Speaker 07: It has to be made sure that that is a knowing and understood. [00:36:22] Speaker 07: The government seems to want to push off the Rule 11 obligations to my counsel, but that's not adequate. [00:36:30] Speaker 07: There's case after case after case where it says Rule 11 must be done by the judge. [00:36:35] Speaker 07: US v. Cantor says that it must explain what basic acts must be proved. [00:36:40] Speaker 07: That didn't happen in this case. [00:36:42] Speaker 07: In Ford, it says you have to have an understanding of what the crime is. [00:36:47] Speaker 07: The defendant has to understand what the actual crime is. [00:36:52] Speaker 05: hearing, the AUSA went through a pretty specific factual discussion of what they alleged the facts of the crime were and was quite specific about knowingly failing to pay these taxes. [00:37:08] Speaker 05: And at the end, the district court judge said, [00:37:11] Speaker 05: And asked you to listen to what was said and said, do you agree with all that? [00:37:15] Speaker 05: And you said yes. [00:37:16] Speaker 05: Now were you not listening? [00:37:18] Speaker 07: I was listening, but... Did you hear them say willing lay? [00:37:22] Speaker 07: Willing has a number of different definitions and the legal definition is very different than the lay definition. [00:37:28] Speaker 05: Did you ask your attorney what that meant? [00:37:30] Speaker 07: I did not. [00:37:32] Speaker 05: What did you think they meant by willing? [00:37:36] Speaker 05: You just said knowing. [00:37:37] Speaker 05: They said knowing and willing. [00:37:38] Speaker 05: So what did you think that extra word added to the dial? [00:37:40] Speaker 07: My understanding is that I made the decision after getting advice of counsel, I didn't pay the tax. [00:37:46] Speaker 07: I thought that satisfied it, which is the exact same case that would happen in McCarthy. [00:37:50] Speaker 07: The defendant there pled guilty because he's like, well, I didn't pay the tax. [00:37:54] Speaker 07: I thought I didn't know that was a crime, but I didn't pay it, so I must be guilty even though I didn't know it was a crime. [00:38:00] Speaker 07: Willingness sets that extra level because of that the defendant has to understand that his action is a crime. [00:38:08] Speaker 07: I did want to talk about plea agreements around the country, almost all also exclude prosecutorial misconduct. [00:38:18] Speaker 05: DC is one of the very few where they're not excluding it. [00:38:24] Speaker 05: Mr. Axum, we asked the federal public defender to address specific legal issues in briefing and oral argument, and we're very grateful for the public defender's assistance to the court in this case. [00:38:37] Speaker 05: The case is submitted.