[00:00:03] Speaker 04:
We still have some questions about that FERC case.

[00:00:16] Speaker 00:
Would you be able to answer them for us?

[00:00:21] Speaker 03:
I'm at a loss.

[00:00:23] Speaker 03:
I didn't understand anything while it was going on, and I still don't.

[00:00:26] Speaker 00:
Sorry.

[00:00:27] Speaker 03:
That's disappointing.

[00:00:31] Speaker 03:
May it please the court counsel, Tony Axum, representing Anthony James.

[00:00:36] Speaker 03:
And I'd like to reserve three minutes for rebuttal.

[00:00:39] Speaker 03:
The court should reverse Mr. James's conviction because the government's drug expert testified as to the defendant's mental state in violation of federal rule of evidence 704B.

[00:00:51] Speaker 03:
Rule 704 prohibits an opinion about whether a defendant did or did not have a mental state or condition that constitutes an element of the crime charged.

[00:01:00] Speaker 03:
And while the government avoided the use of the word intent,

[00:01:04] Speaker 03:
In asking questions of its drug expert, it essentially asked the expert to opine about the mental state of the defendant.

[00:01:13] Speaker 03:
In one question, it asked, based on your calculations and your viewing of this item, what is your opinion as to whether the person who possessed this bag was a distributor or a user?

[00:01:26] Speaker 03:
That was just a roundabout way of asking what was the intent of the person who possessed the bag.

[00:01:32] Speaker 03:
The second question was no better, and this related to the multiple ziplocks.

[00:01:38] Speaker 03:
What is your opinion?

[00:01:40] Speaker 03:
as to whether this bag was something possessed by a distributor or someone who was using it for personal use.

[00:01:47] Speaker 03:
Predictably, the expert gave the answer that the government would expect, and under this court's precedent, intent doesn't have to be used.

[00:02:00] Speaker 03:
if there is a strategy of going around the precedent in this circuit and rule 704 simply to get at, to have the jury conclude that the intent of the person was distribution.

[00:02:18] Speaker 03:
It's a violation.

[00:02:19] Speaker 00:
The problem for you is not the underlying question, but the lack of an objection, which puts us into our precedent about plain error.

[00:02:31] Speaker 00:
There was not an objection.

[00:02:33] Speaker 00:
So the leading and almost exactly same case, except that case was even worse, is U.S.

[00:02:40] Speaker 00:
versus Miller, where the person, the drug expert, was asked whether or not it's consistent with an intent to distribute, to actually use the I-word.

[00:02:52] Speaker 00:
And in that case, the expert had said that he didn't know anything about

[00:02:59] Speaker 00:
specific facts, which is the same thing the experts said in this case.

[00:03:03] Speaker 00:
And we said that that was not clear and obvious and therefore doesn't overcome the plain error question.

[00:03:12] Speaker 00:
How is this distinguishing?

[00:03:14] Speaker 00:
I get all of your arguments about

[00:03:17] Speaker 00:
And I feel a little bit like the government seems to have forgotten what the rule was.

[00:03:22] Speaker 00:
As I look through the cases, there's a big period where there aren't any cases anymore because our drug experts appear to be getting the right questions and giving the right answers, and here we are again.

[00:03:36] Speaker 00:
But we have a problem of the failure to raise an objection and then our plain error case, which seems directly on point.

[00:03:44] Speaker 03:
Well, I would disagree with the court that it's directly on point.

[00:03:47] Speaker 03:
I believe in the Miller case, the drug expert repeatedly said, I don't know anything about this defendant.

[00:03:54] Speaker 03:
I don't know anything about this case.

[00:03:57] Speaker 03:
And there was, at the beginning of the testimony in Mr. James's case, there was a question as to whether the drug expert knew about the case.

[00:04:07] Speaker 03:
And he said no.

[00:04:11] Speaker 03:
First of all, the drug expert's testimony was over two days in this case.

[00:04:15] Speaker 03:
So that the jury would remember something that needed to be emphasized, especially when you were coming up close to the line of impermissible testimony, I think, is a stretch.

[00:04:31] Speaker 03:
And I think that distinction is important, whether it's harmless or whether it's

[00:04:40] Speaker 03:
whether it actually establishes the prejudice that we have to show.

[00:04:54] Speaker 03:
That's another distinction in this case.

[00:04:57] Speaker 03:
In the closing argument, the government argued that the intent was easy.

[00:05:03] Speaker 03:
And it was easy because, in this case, because the expert had already provided that testimony.

[00:05:11] Speaker 01:
And I think the court... Well, isn't it just common sense that a large amount of something that you possess that's not commonly

[00:05:23] Speaker 01:
Used in the house is going to be for distribution.

[00:05:28] Speaker 01:
So if you have a Thousand boxes of Girl Scout cookies, you're probably not eating them all you're distributing them You're selling them.

[00:05:36] Speaker 01:
So too if you have a certain amount of drugs, you're probably not using it all you're probably distributing it except that jurors may not understand how much is a

[00:05:47] Speaker 01:
user amount.

[00:05:48] Speaker 01:
So all the experts doing is telling you this is not the typical user amount.

[00:05:55] Speaker 01:
It could be the person could defend by saying actually I was a user.

[00:05:59] Speaker 01:
But isn't that all the experts doing here?

[00:06:03] Speaker 03:
I would agree that there would not be a problem with that if that's all the expert was doing.

[00:06:08] Speaker 03:
But the expert was not doing that in this case.

[00:06:11] Speaker 03:
The expert was not asked how many dosages do you get out of the quantity of drugs that are here.

[00:06:16] Speaker 03:
Even as we stand here today, we don't know how many dosages would be reasonable so that a jury could draw that common sense conclusion.

[00:06:25] Speaker 03:
Here, the expert was asked whether

[00:06:28] Speaker 03:
This quantity, 33 grams in one case and 5 grams in the other, was for a distributor or user?

[00:06:35] Speaker 01:
There was a lead-up where the expert described the common crack users, how much they're using in a particular, by amount of money, I guess, so you'd have to do the math to extrapolate on that because he did the amount that this represented to.

[00:06:53] Speaker 03:
Well, I think that's a different question.

[00:06:56] Speaker 03:
The expert did testify about

[00:06:58] Speaker 03:
the common size of purchase by a user and said it's often a $10 purchase.

[00:07:13] Speaker 01:
And this was several thousand dollars worth, which you could say I was stockpiling for use, but that would be something for the jury to think about.

[00:07:21] Speaker 01:
The expert was, as I understood it, merely

[00:07:25] Speaker 01:
describing what the common usage amount is in dollars, and then the jury could take it from there.

[00:07:33] Speaker 03:
Well, I would disagree.

[00:07:34] Speaker 03:
I maintain that the question is improper.

[00:07:38] Speaker 03:
There was no quantity included in the question, although the government referred back.

[00:07:44] Speaker 03:
But I would suggest to the Court that that's simply an avoidance strategy.

[00:07:50] Speaker 00:
Whether that's a fair description of the questions and answers right afterwards, the expert says that they'll often come up with a $10 piece of crack or $20.

[00:08:06] Speaker 00:
They will immediately ingest it.

[00:08:09] Speaker 00:
Their life is what they call a hustle.

[00:08:11] Speaker 00:
They don't have the means to purchase large-scale amounts such as this.

[00:08:17] Speaker 00:
I don't – yes, it's – one part of typical expert testimony is how much she used at a certain time, but this seems like a perfectly appropriate – this part of the testimony is certainly appropriate, isn't it?

[00:08:29] Speaker 03:
There's no problem with that testimony.

[00:08:31] Speaker 00:
This is a big chunk, and they normally don't have enough money.

[00:08:33] Speaker 00:
Then they go on, crack users don't have access to the individuals that sell the 33-gram chunks, as you see here.

[00:08:42] Speaker 00:
That's a general statement that we would certainly allow experts to say, isn't that right?

[00:08:49] Speaker 00:
That's correct.

[00:08:50] Speaker 00:
All right, so it seems like the context, which comes immediately after that question, is an explanation of how

[00:09:02] Speaker 00:
what actually happens with respect to users and distributors, and not particularly this user or distributor.

[00:09:07] Speaker 03:
Well, that's the problem, because you do get to this ultimate question that we are challenging.

[00:09:16] Speaker 03:
it's no longer users in general or distributors in general, it's the person who had this crack.

[00:09:23] Speaker 03:
And what the law prohibits is an expert from testifying about the special knowledge of the defendant's mental process.

[00:09:32] Speaker 03:
And this person, the only person accused of having this crack is the defendant.

[00:09:38] Speaker 03:
So the expert is squarely testifying about

[00:09:43] Speaker 03:
Mr. James at this point, he is not talking in general.

[00:09:47] Speaker 03:
So maybe the lead-up questions are proper.

[00:09:51] Speaker 03:
We're not objecting to the lead-up questions.

[00:09:54] Speaker 00:
Again, I'm not in any way suggesting that the questioning was not error.

[00:09:59] Speaker 00:
I'm asking the question whether it was plain error in light of our case law.

[00:10:04] Speaker 00:
And the case law seems to say, even if they use, doesn't even seem to say, does say, even if they use the word intent, it's still not clear and obvious unless, you know, there's no context in general provided.

[00:10:21] Speaker 00:
And here, it says even, even,

[00:10:26] Speaker 00:
When the prosecutor uses the I word in formulating a question, there's no rule 704B violation.

[00:10:32] Speaker 00:
If it's made clear, the expert has no knowledge of the actual case.

[00:10:36] Speaker 00:
And he did say that.

[00:10:38] Speaker 00:
And even where it approaches the type that is a carbon copy of the matter before the jury, it's okay as long, it's not okay, but it's not clear error unless

[00:10:54] Speaker 00:
I believe in each of those cases the context provided is either

[00:11:10] Speaker 00:
something corrective by the court saying, I'm only talking about, I know that obviously it's corrected, you've got a better, there's a difference, but Miller is the case.

[00:11:19] Speaker 03:
Or the witness himself saying, although I don't know anything about this case with regard to that question, I understand there's, in general the expert can say, I don't know anything about the case.

[00:11:32] Speaker 03:
But it is important, and I think this court has recognized that it's important,

[00:11:38] Speaker 03:
that when you get to the improper question, the jury needs to be reminded that the expert is not talking about the defendant in general.

[00:11:48] Speaker 03:
And all I'm saying is the question here

[00:11:51] Speaker 03:
left no other conclusion except the expert was talking about this defendant and he was not, he did not qualify it with, although I do not know this defendant or the mental processes of this defendant.

[00:12:06] Speaker 01:
What about the fact that the defendant himself at closing

[00:12:12] Speaker 01:
basically said or did say the only dispute I have is whether I possessed those drugs, so on the prejudice prong.

[00:12:20] Speaker 01:
There are two ways you could defend against a large amount being found in your house.

[00:12:24] Speaker 01:
One is actually I was a user and was stockpiling, and the other would be they weren't mine.

[00:12:30] Speaker 01:
Here the defense seemed to be they weren't mine.

[00:12:34] Speaker 03:
I believe that that would

[00:12:36] Speaker 03:
That is correct.

[00:12:37] Speaker 03:
The defendant's main defense was possession.

[00:12:41] Speaker 03:
That doesn't mean that the government was relieved of its burden to prove intent through a proper means.

[00:12:48] Speaker 03:
And that's our objection here, that they did not prove the intent properly.

[00:12:52] Speaker 01:
Can I ask you a question on the counsel issue, which is on standby counsel?

[00:13:02] Speaker 01:
The Second and Seventh Circuits have said there's no such thing cognizable as ineffective assistance of standby counsel.

[00:13:13] Speaker 01:
And why are they wrong?

[00:13:20] Speaker 03:
I think their understanding of that there is a right to counsel.

[00:13:33] Speaker 03:
And in this case, the defendant, though he chose to represent himself, during the colloquy, giving up the right to have counsel, specifically said that I need assistance with my witnesses and investigation.

[00:13:54] Speaker 03:
So to the extent that the right exists,

[00:13:57] Speaker 03:
the defendant can waive the right, but where he does not waive it completely and retains and the court ratifies that retention, which is what the court did here.

[00:14:09] Speaker 03:
The court did not advise him that no, you are on your own for investigation.

[00:14:13] Speaker 03:
You are on your own for witnesses.

[00:14:18] Speaker 03:
And throughout the proceedings, repeatedly, when witnesses are discussed, standby counsel is the person who answers.

[00:14:26] Speaker 03:
What the court told the defendant when he waived his right to counsel was that he would have to examine witnesses, make objections, and argue motions.

[00:14:37] Speaker 01:
Your position has a lot of logical appeal.

[00:14:41] Speaker 01:
The government says, though, that standby counsel will then be required to do enough to avoid being ineffective, but not so much as to interfere with the defendant's right to represent himself.

[00:14:50] Speaker 01:
So that's the concern that they have about recognizing what you're saying as being a new freestanding claim.

[00:14:57] Speaker 01:
How do you respond to that?

[00:14:59] Speaker 03:
I understand that concern, but the court can

[00:15:02] Speaker 03:
could have, in this case, could have said, no, you are standby counsel.

[00:15:07] Speaker 03:
You will submit your investigation request through me.

[00:15:10] Speaker 03:
I will give them to the investigator, and we will proceed in that matter.

[00:15:14] Speaker 03:
The court could have required the defendant to entirely waive his right to counsel.

[00:15:20] Speaker 03:
The court did not require that, and it's inconsistent with the right to counsel, which is

[00:15:30] Speaker 03:
It would be inconsistent to punish the defendant for exercising the right within the limitations set out when he gave up that right.

[00:15:44] Speaker 00:
My question is why we address this on this appeal rather than relegate the defendant to filing a 2255.

[00:15:54] Speaker 00:
You're resting on Rashad, which says normally we send it back to the district court.

[00:16:02] Speaker 00:
However, in both, the theory of Rashad is because the defendant didn't have an opportunity to make the argument in the district court because he had the same counsel.

[00:16:13] Speaker 00:
Here he had a new counsel.

[00:16:15] Speaker 00:
And in DeBango and Fennel, we said where there's a new counsel,

[00:16:21] Speaker 00:
If you don't make the ineffective assistance claim against the trial counsel, when you had the chance, then you can't raise it on direct appeal.

[00:16:30] Speaker 00:
You have to do it in every other circuit, which is to file a habeas.

[00:16:36] Speaker 00:
Why doesn't that apply?

[00:16:40] Speaker 00:
Why doesn't the Fennel rule and the Tobango rule apply here?

[00:16:50] Speaker 03:
I guess I would take issue with what the court's referring to as the Fennel and Dabango rule.

[00:16:58] Speaker 03:
In a 2255 context, the defendant

[00:17:09] Speaker 03:
is in a very different situation than when he is appealing under Rashad.

[00:17:14] Speaker 00:
I don't think there's any doubt about that, but all the other circuits don't let you raise ineffective assistance on direct appeal.

[00:17:21] Speaker 00:
You raise them otherwise in Rashad.

[00:17:25] Speaker 00:
I mean, you can raise them, but we have a general practice of remanding for an evidentiary hearing.

[00:17:34] Speaker 00:
And the reason is that the defendant

[00:17:37] Speaker 00:
didn't have the opportunity to make that first claim in an evidentiary hearing before the district court.

[00:17:42] Speaker 00:
In this case, it does.

[00:17:44] Speaker 00:
In Tobango, we said, we note that when counsel changes prior to appeal, when there's still a reasonable opportunity to challenge a conviction in the district court, a criminal defendant bears the usual obligation to raise issues and introduce evidence in the trial court in order to preserve his claim on appeal.

[00:18:03] Speaker 00:
And in this case,

[00:18:04] Speaker 00:
It is true, isn't it, that in fact he originally made that argument.

[00:18:10] Speaker 00:
from the trial court, and then his new counsel, who was a real counsel, not just a standby counsel, waived that position.

[00:18:24] Speaker 03:
Well, the first thing I would say is that Rashad itself does not hinge on whether you have a new counsel or whether you have the original counsel.

[00:18:38] Speaker 03:
Why do you think Fennel doesn't decide that question?

[00:18:44] Speaker 03:
Why it does not decide it?

[00:18:46] Speaker 03:
Because this Court believes and stated in Rashad that

[00:18:53] Speaker 03:
This court has a view of eliminating a technical barrier to an ineffective assistance of counsel.

[00:19:01] Speaker 00:
That's the quotation from Rashad, which you put in your brief.

[00:19:05] Speaker 00:
This court's, quote, general practice is to amend the claim for an evidentiary hearing, close quote, unless, quote, the trial record alone conclusively shows, close quote, that the defendant either is or is not entitled to relief.

[00:19:18] Speaker 00:
That's what you're relying on, right?

[00:19:20] Speaker 00:
Yes, I do.

[00:19:21] Speaker 00:
You know the problem with that, though?

[00:19:23] Speaker 00:
That is a quotation from Fennel.

[00:19:27] Speaker 00:
In other words, Rashad is based on Fennel.

[00:19:30] Speaker 00:
And Fennel has a caveat, which is when you do have counsel below.

[00:19:34] Speaker 00:
If you read Rashad, it's right.

[00:19:37] Speaker 00:
It is the citation that is the basis for that claim.

[00:19:41] Speaker 00:
The quotation comes from Fennel.

[00:19:44] Speaker 03:
Well, what I would say, when you do have new counsel below and new counsel has failed to recognize the ineffectiveness

[00:19:53] Speaker 03:
of the prior counsel, the court has not actually solved the problem.

[00:19:59] Speaker 03:
If the rationale, the overarching rationale is not to place barriers on the defendant to raise ineffective assistance of counsel claims, and there is ineffectiveness, and the second attorney at the trial level also does not recognize it,

[00:20:18] Speaker 03:
There is no greater burden on this court to accept it on direct appeal.

[00:20:21] Speaker 00:
Fair, but can I just follow up?

[00:20:23] Speaker 00:
There's just one problem with that, which is you are not claiming that the second trial counsel was ineffective.

[00:20:30] Speaker 00:
There's no ineffectiveness claim.

[00:20:33] Speaker 00:
That is correct.

[00:20:35] Speaker 00:
And you're not claiming that he was ineffective in failing to carry through

[00:20:41] Speaker 00:
the ineffective assistance claim.

[00:20:43] Speaker 00:
In fact, that paper says Mr. James at this time withdraws his motion for a new trial.

[00:20:51] Speaker 00:
based on the ineffective assistance of council claim against standby council.

[00:20:55] Speaker 03:
But there is no requirement that it be included.

[00:20:58] Speaker 03:
Every time you have new council, that new council raise all ineffectiveness claims.

[00:21:03] Speaker 03:
Rashad doesn't say that and Finnell doesn't say that.

[00:21:05] Speaker 03:
Rashad says... It did not create a requirement for new council to raise all ineffectiveness claims.

[00:21:12] Speaker 03:
Rashad is simply removing the barrier to raising ineffectiveness claims.

[00:21:17] Speaker 03:
I think...

[00:21:21] Speaker 03:
I understand that it may be more efficient to have the new council raise them.

[00:21:30] Speaker 04:
I'd also... Let me ask a question.

[00:21:34] Speaker 04:
This is not, as I understood your brief, you think the record is adequate as it exists to establish the violation.

[00:21:45] Speaker 04:
In other words, the transcript is perfectly clear as to the role of Mr. Sussman.

[00:21:51] Speaker 03:
That's correct.

[00:21:52] Speaker 04:
So this is not a case where the legal question is not teed up.

[00:21:59] Speaker 04:
It's not unclear

[00:22:01] Speaker 04:
about the facts that would require an evidentiary hearing in the normal ineffective assistance of counsel case.

[00:22:08] Speaker 04:
That might be an argument you could make.

[00:22:11] Speaker 04:
The other thing I want to just explore here a little bit is, and this is sort of teeing it up for the government.

[00:22:19] Speaker 04:
The government, as you know, appears as the prosecutor in the District of Columbia court system.

[00:22:27] Speaker 04:
And it was counsel in the Ali case.

[00:22:31] Speaker 04:
And that case was decided many years ago by the D.C.

[00:22:34] Speaker 04:
Court of Appeals, recognizing the situation that exists here, namely, unlike the federal cases where they are not dealing with the Sixth Amendment right to counsel at trial itself, but dealing with some collateral proceedings where those courts said there is no Sixth Amendment right to counsel here.

[00:23:00] Speaker 04:
at least the Ali Court said, no question there is a right to counsel at trial.

[00:23:06] Speaker 04:
And when the trial proceeds in this hybrid manner, then the Sixth Amendment right extends at least to that portion of the trial handled by standby counsel.

[00:23:25] Speaker 04:
So I couldn't find that the in-bank court, despite all the former members of the US Attorney's Office, who head of the Appellate Division, who are members of that court, has ever changed that understanding of the Sixth Amendment in this hybrid council context that's at issue here.

[00:23:50] Speaker 04:
And that's why I was particularly interested, and I'll see how,

[00:23:54] Speaker 04:
The government responds.

[00:23:56] Speaker 04:
I mean, the government's brief simply says, well, we have some state court cases, but they don't give any legal justifications for their holdings or attempt to reconcile their approach with Torna and Coleman.

[00:24:07] Speaker 04:
Well, that's not the way I read the DC Court of Appeals opinion at all.

[00:24:12] Speaker 04:
So we have that, where the United States is the prosecutor in the local court system.

[00:24:18] Speaker 04:
And it has been living with this rule

[00:24:23] Speaker 04:
for many, many years.

[00:24:26] Speaker 04:
And maybe the issue doesn't come up very often, so it's had no occasion in recent years to seek a petition for rehearing in bank.

[00:24:35] Speaker 04:
But that is the law that the US attorney faces when it's prosecuting felons in the District of Columbia court system.

[00:24:47] Speaker 04:
So I wondered in that sense, is not that this case on all fours?

[00:24:52] Speaker 04:
whereas I didn't find any of the Federal Circuit cases to be on all fours.

[00:24:58] Speaker 03:
The Ali case is this case on all fours.

[00:25:02] Speaker 03:
The more common occurrence in the Federal cases is the habeas context where there is no right to counsel, and those are the cases that the government largely cites.

[00:25:12] Speaker 03:
But where you have a right, and the Court has recognized that right and afforded you hybrid representation,

[00:25:24] Speaker 03:
The Sixth Amendment demands that the person assisting you be competent.

[00:25:33] Speaker 03:
I would like to just remind the court that this situation was unique because Mr. James represented himself and only was appointed new counsel at the sentencing phase.

[00:25:52] Speaker 03:
And the original claim, which was just a bare bones claim that his trial of counsel had been ineffective, was filed by Mr. James originally.

[00:26:03] Speaker 03:
When he was appointed counsel for sentencing, that counsel withdrew it.

[00:26:09] Speaker 03:
There was no indication that it was withdrawn with prejudice, that he was abandoning it, that he had waived it, or that the court ever had it.

[00:26:17] Speaker 00:
That goes to the question of permanent waiver.

[00:26:19] Speaker 00:
I'm still on the question of whether he waived it for purposes of the appeal.

[00:26:26] Speaker 00:
And Judge Rogers asked you a question about whether the record is complete here.

[00:26:32] Speaker 00:
So my understanding is that when the court asked the standby counsel who wrote the date on the piece of paper, counsel responded, I don't know.

[00:26:41] Speaker 00:
And when the ineffective assistance of counsel claim was raised below, the government filed a motion for waiver of the attorney-client privilege, assuming there was one.

[00:26:54] Speaker 00:
And it was at that point

[00:26:56] Speaker 00:
that the new council said, well, we don't want a waiver.

[00:27:00] Speaker 00:
We don't want any questions going to the council because we're not going to raise that question.

[00:27:07] Speaker 00:
So that raises the question, actually, of whether there is a record, full record here.

[00:27:13] Speaker 00:
If we were to send it back down, it would be a chance for the government to continue and ask council, did you put the date down there?

[00:27:24] Speaker 00:
client put the date down there it would be an opening for the government to ask the defendant did you tell your witnesses to come the next day did you tell them they didn't have to come that day so we don't actually know we don't have a record now all that may be speculation and it may be that this is all the council's fault in which case we would then have to ask the question whether there is a right to counsel in the first place but I don't think we have a record

[00:27:53] Speaker 00:
here yet, even assuming there is a right to counsel, that counsel was ineffective until we know how it came to be that the witnesses didn't appear until after the case was over.

[00:28:03] Speaker 03:
Your Honor, I respectfully disagree.

[00:28:05] Speaker 03:
Once the attorney, the standby counsel, had the obligation to get the witnesses there, assumed the obligation, told the court that he was in the lead on doing that, when he passed up a subpoena and did not know what

[00:28:23] Speaker 03:
I don't think that his answer is going to change if this was remanded for him to re-answer the question as to how that information got on the subpoena.

[00:28:30] Speaker 03:
Now, there may be some truth out there that the government could figure out through other witnesses, but in terms of the responsibility of the attorney who was supposed to subpoena, he abdicated.

[00:28:43] Speaker 00:
I got that, but that goes only to the first point.

[00:28:46] Speaker 00:
It doesn't go to the prejudice prompt.

[00:28:48] Speaker 00:
And if it turned out it was the defendant who told the witnesses not to come,

[00:28:52] Speaker 00:
Maybe because he again, I'm totally speculating, but if the defendant told the witnesses not to come because he was afraid of what they would actually say.

[00:29:02] Speaker 00:
or for any other reason, that would go to the prejudice prong, not to the ineffectiveness prong, to the deficient representation prong.

[00:29:14] Speaker 03:
I understand.

[00:29:15] Speaker 03:
I think the record strongly undermines any theory such as that, because on the 16th, when the witnesses were supposed to be there, the defendant said, and I am waiting for specifically Tanya James, my wife,

[00:29:29] Speaker 03:
Um, we did not hear anything else about that on that date, so that he didn't want her, didn't, or, you're correct, it's speculation, but we know that he told the court.

[00:29:42] Speaker 00:
My witness, I'm waiting for her to be here.

[00:29:48] Speaker 00:
they had followed through with and already begun ineffective assistance of counsel claim in the district court.

[00:29:55] Speaker 00:
This isn't even the case where there's a new counsel and he could have thought of the idea of ineffective assistance.

[00:30:01] Speaker 00:
This is a case where there's a new counsel with an ineffective assistance claim already raised, which the new counsel then decides not to make and which no one argues the new counsel was ineffective for failing to make.

[00:30:17] Speaker 00:
And that's all I have.

[00:30:18] Speaker 03:
Right.

[00:30:19] Speaker 03:
But where there's no obligation, this isn't a civil proceeding where there's an obligation or a requirement.

[00:30:26] Speaker 03:
Rashad doesn't place those types of requirements.

[00:30:28] Speaker 03:
And you can withdraw really any argument.

[00:30:32] Speaker 03:
I could withdraw an argument right now.

[00:30:35] Speaker 00:
Again, there may be a disagreement between us on the meaning of Rashad in combination with the Bango and Fennel, which I think stand for the proposition that if you have a new council,

[00:30:44] Speaker 00:
The General Rashad approach doesn't apply.

[00:30:47] Speaker 00:
That's all.

[00:30:48] Speaker 00:
We may disagree with that.

[00:30:50] Speaker 00:
I'll hear from the government.

[00:31:01] Speaker 02:
Good morning, Judge Garland, and may it please the Court.

[00:31:04] Speaker 02:
If I might start with Judge Kavanaugh and Judge Rogers' questions about the merits of the defendant's Sixth Amendment claim as to the effective assistance of standby counsel and whether that right exists at all.

[00:31:18] Speaker 02:
His claim in that regard is both legally and factually flawed.

[00:31:22] Speaker 02:
As a legal matter, he's effectively saying that he has a constitutional right

[00:31:27] Speaker 02:
both to represent himself and, at the same time, have the representation from counsel.

[00:31:33] Speaker 02:
And the Supreme Court in McCaskill and this court in Washington directly rejected that proposition.

[00:31:40] Speaker 04:
But you agree that facts were different, all right?

[00:31:45] Speaker 04:
In other words, it wasn't where the trial court had condoned the hybrid situation.

[00:31:54] Speaker 02:
I'm not aware of any court, Your Honor, that has drawn the distinction based on the scope of the waiver to say that that somehow creates a constitutional right to the effective assistance of standard counsel.

[00:32:08] Speaker 02:
Ali doesn't address this argument that the Supreme Court found in Wainwright and in Coleman that where there is no right to representation by counsel, there can be no right to effective assistance.

[00:32:22] Speaker 02:
And it didn't look at the scope of the waiver in that case.

[00:32:25] Speaker 02:
It didn't look at the language of the waiver.

[00:32:27] Speaker 02:
Ali looked at

[00:32:28] Speaker 02:
what the council actually did.

[00:32:30] Speaker 02:
But in both Wainwright and in Coleman, the council actually affirmatively represented the habeas petitioners in this case.

[00:32:39] Speaker 04:
So just in a hypothetical situation, the defendant wants to represent himself under Ferretta.

[00:32:46] Speaker 04:
And he says to the district court judge, but I need assistance in this part.

[00:32:58] Speaker 04:
And the judge says, fine, let's proceed.

[00:33:03] Speaker 04:
And so standby counsel is asked by the district court judge to take over part A. In that circumstance, there can be no

[00:33:21] Speaker 04:
ineffective assistance of standby counsel if suppose he doesn't do part A and part A that's hypothetically say it's critical to the defendant's defense.

[00:33:34] Speaker 04:
I'm just asking, I haven't seen the cases, only the Ali case.

[00:33:39] Speaker 04:
Maybe it comes up so infrequently, but it was odd here that this wasn't clarified by the district court here.

[00:33:46] Speaker 04:
That's what I couldn't understand.

[00:33:48] Speaker 02:
I don't believe you would have an ineffective assistance claim in a circumstance your honor posits.

[00:33:54] Speaker 02:
Schmidt and Morrison and Battaglia in the Seventh Circuit

[00:34:00] Speaker 02:
at least a couple of those cases, and I don't remember which, talk about the fact that the defendant did not have the right to the type of hybrid representation that existed in those cases.

[00:34:10] Speaker 02:
In other words, the attorneys took over some part of the representation, and the courts in those cases said, that may be true as a matter of fact, but the defendant didn't have that right, and thus the defendant may not claim ineffective assistance of counsel.

[00:34:24] Speaker 02:
The Ferretta right of self-representation

[00:34:27] Speaker 02:
comes from the same source as the right to be represented by counsel, the Sixth Amendment.

[00:34:32] Speaker 02:
It's a binary right.

[00:34:33] Speaker 02:
It's one or the other.

[00:34:36] Speaker 04:
So the problem here is that we would hope in the future that the district court judge would say to the defendant, you can get whatever assistance you want, but you'll never have any claim of ineffectiveness by that assistant.

[00:34:58] Speaker 02:
I think that would be an appropriate thing for the district court to say.

[00:35:01] Speaker 02:
And as I started, not only is the defendant's claim in this case legally flawed, it's also factually flawed.

[00:35:08] Speaker 02:
If you look at what the district court and the defendant actually said during the

[00:35:14] Speaker 02:
the right to counsel waiver.

[00:35:16] Speaker 02:
The defendant said that, talked about having problems with witnesses coming to the jail and speaking to him in private.

[00:35:25] Speaker 02:
He was concerned about the fact that typically you have to speak with witnesses in recorded conversations on a screen.

[00:35:32] Speaker 02:
and that the attorney could meet with that witness in person.

[00:35:36] Speaker 02:
And so when he said, I don't want to have problems with my witnesses, he was talking about a very narrow circumstance of meeting with them at the jail and the privacy of his discussions.

[00:35:47] Speaker 04:
Well, we actually know it went further than that.

[00:35:52] Speaker 04:
Issuing subpoenas on the right day, making sure they sign up, show up for court?

[00:35:58] Speaker 02:
The district court made clear that the investigator who was the person tasked with doing that was the defendant's investigator.

[00:36:06] Speaker 02:
The district court said that during this waiver.

[00:36:08] Speaker 02:
It said you'll have the use of the investigator that has been retained in connection with this case speaking to the defendant.

[00:36:15] Speaker 04:
So what do you understand the role of

[00:36:17] Speaker 04:
stand by counsel to be in these cases.

[00:36:21] Speaker 04:
Is it just as an assistant to the trial judge to keep the defendant from filing voluminous motions, multiple motions, acting inappropriately, not understanding the process?

[00:36:37] Speaker 02:
I believe, judges don't have to appoint somebody counsel at all.

[00:36:41] Speaker 02:
We know that.

[00:36:42] Speaker 02:
Most judges do.

[00:36:43] Speaker 02:
I assume they do it mostly for the court's benefit to make sure that the proceedings run smoothly, that the defendant knows the rules of evidence.

[00:36:52] Speaker 04:
So maybe the defendant has to be told that too.

[00:36:55] Speaker 02:
I'm not aware that any court has ever found the... No, but it's an interesting observation, isn't it?

[00:37:01] Speaker 04:
If I'm the defendant and the judge tells me, look, I've got somebody, I want to work with you, who's really my

[00:37:07] Speaker 04:
My intern.

[00:37:12] Speaker 04:
That intern is a lawyer.

[00:37:14] Speaker 04:
but it's my staff that's working with you.

[00:37:16] Speaker 04:
This is not somebody you should assume in any way is working for you.

[00:37:23] Speaker 02:
The court made clear to the defendant that he had to file motions, he had to make arguments, he had to examine witnesses.

[00:37:30] Speaker 02:
The court told the defendant, you'll be in charge, you'll be making the decisions.

[00:37:33] Speaker 04:
You're more familiar with this than I, but in most of the cases I've seen, it's where the defendant wants standby counsel to be an active player in the trial itself.

[00:37:43] Speaker 04:
questioning witnesses, making an argument, et cetera.

[00:37:46] Speaker 04:
And that's not this case.

[00:37:48] Speaker 04:
This is all the behind-the-scenes work that an incarcerated defendant can't do effectively.

[00:37:57] Speaker 02:
I agree that most of the cases in which the court has said you have no right to hybrid representation, as the court said in McCaskill, the Supreme Court, you have no right to choreograph special appearances by counsel.

[00:38:07] Speaker 02:
They're talking about these trial-type appearances.

[00:38:10] Speaker 02:
This defendant however, had the same ability to manage the investigator that his attorney had.

[00:38:17] Speaker 02:
He had the same ability to tell the investigator, because it was clear that it was the investigator who served the subpoenas in the first place.

[00:38:24] Speaker 02:
And so he had the same ability as the trial attorney to tell the investigator who to serve, what days they should show up, how to remain in contact with them.

[00:38:33] Speaker 02:
And thus, it was the defendant's responsibility in this case to do so.

[00:38:38] Speaker 04:
Making it all the more important for the district court judge to tell the defendant that this standby person is really the judge's assistant.

[00:38:48] Speaker 02:
To say it's really the judge's assistant, I don't think does it credit.

[00:38:52] Speaker 02:
It obviously helps the defendant to have a legally trained person who can advise him as to what arguments to make, how this whole function works.

[00:39:00] Speaker 02:
I agree, I think it's likely the case that most courts do it.

[00:39:05] Speaker 02:
because from their point of view, it makes the process go more smoothly.

[00:39:09] Speaker 02:
And it also allows the defendant, and this protects the defendant's rights, to withdraw his self-representation at any point.

[00:39:17] Speaker 02:
A key purpose of standby counsel is if a defendant at any given time chooses that he no longer wants to represent himself, standby counsel who's been there the whole time can take over the case at that point.

[00:39:30] Speaker 02:
And so that also protects the defendant's rights, beyond his rights at trial, to represent himself.

[00:39:39] Speaker 02:
As to going to Judge Garland's questions, I do believe that DeBango, where the... Can we just go back on Judge Garland's other question, which is on whether we have a record from which we could conclude?

[00:39:53] Speaker 00:
So assume for the moment that there is a Sixth Amendment right to the extent that the court

[00:40:03] Speaker 00:
provided limited counsel.

[00:40:07] Speaker 00:
Does that extend to the issuing of the subpoenas?

[00:40:13] Speaker 00:
Was that the job of the investigator?

[00:40:18] Speaker 00:
Do we know whether, is there an argument that the standby attorney, assuming he had a responsibility, was ineffective with respect to the subpoenas?

[00:40:32] Speaker 02:
There's an argument that he was not ineffective.

[00:40:34] Speaker 02:
First of all, he did not know who put that date on the subpoena.

[00:40:37] Speaker 02:
And as your honor asks, it could have been the defendant himself.

[00:40:41] Speaker 02:
the defendant never sought bench warrants or brought to the court's attention the fact that these witnesses were missing on the 16th.

[00:40:47] Speaker 04:
You know, I'm trying to get some witnesses to testify in my defense.

[00:40:50] Speaker 04:
I don't want them arrested.

[00:40:52] Speaker 04:
I can avoid it, all right, obviously.

[00:40:56] Speaker 04:
So, I mean, I understand those technical arguments, but in the real world, do you want to antagonize your witnesses when you're trying to get them?

[00:41:04] Speaker 04:
I mean, I thought the Weiss testimony, according to the record, was all supposed to support the defendant's

[00:41:10] Speaker 04:
defense about possession.

[00:41:14] Speaker 02:
We don't know what the wife would have said.

[00:41:15] Speaker 04:
No, but I'm saying what is in the record so far.

[00:41:18] Speaker 04:
So that she was a positive witness for him, not a negative witness like the girlfriend turned out to be on rebuttal.

[00:41:26] Speaker 02:
He claims that he wanted his wife because his wife could have been a positive witness for him.

[00:41:32] Speaker 02:
His wife also had a fifth and could have said, yes, that was me and yes, the defendant was in the apartment at the same time and they were his drugs that I was selling to the informant.

[00:41:43] Speaker 04:
I agree with that and who was going to tell the defendant that?

[00:41:47] Speaker 02:
The defendant, the wife was there on the 17th.

[00:41:49] Speaker 02:
The wife also.

[00:41:50] Speaker 04:
No, no, no.

[00:41:51] Speaker 04:
She was not going to testify because she was going to invoke her Fifth Amendment.

[00:41:56] Speaker 02:
That hadn't been hashed out yet at the time that as of the 16th, the defense counsel noted that she had a fifth.

[00:42:06] Speaker 04:
So was your response to Chief Judge Garland that there are a number of factual questions that would need to be clarified at an evidentiary hearing?

[00:42:17] Speaker 02:
Yes, Your Honor, both as to prejudice but also as to deficient performance.

[00:42:22] Speaker 02:
In fact, even if the investigator made an error, even if we absolutely know it was the investigator who wrote the 17th and that he made that mistake, defense counsel, I've worked with this investigator for 20 years.

[00:42:34] Speaker 02:
I always rely on him to subpoena my witnesses for the correct date.

[00:42:39] Speaker 02:
He has never before subpoenaed them for the wrong date.

[00:42:42] Speaker 02:
And then his performance would not be deficient in once again relying on his investigator in this case to make sure that the witnesses arrived on the correct day.

[00:42:52] Speaker 02:
So there are lots of unanswered factual questions and they're unanswered because the defendant, represented by new counsel, withdrew his ineffective assistance claim.

[00:43:03] Speaker 02:
And I do think that debango stands for the proposition that where the defendant both has the ability

[00:43:10] Speaker 02:
opportunity and new counsel following trial to raise an ineffective assistance of counsel claim.

[00:43:16] Speaker 02:
He is in a motion for a new trial that he's barred from doing so on direct appeal and may of course bring it in a 2255 as in every other circuit.

[00:43:26] Speaker 04:
So was new counsel appointed for the purpose of sentencing or just that wasn't the limit of the assignment?

[00:43:36] Speaker 02:
The new counsel was appointed post trial for sentencing, but the new counsel also filed a new motion for a new trial, and the judge had instructed her to bring all claims in the motion for a new trial, and new counsel also took responsibility for doing that.

[00:43:55] Speaker 02:
And that motion had no ineffective assistance of counsel claims in it.

[00:44:00] Speaker 00:
I take it also address the question of what the defendant's position was with respect to that, at least for the moment.

[00:44:10] Speaker 02:
That was ahead of time.

[00:44:11] Speaker 02:
So the defendant filed these pro se motions for a new trial.

[00:44:16] Speaker 02:
The government, in response to those which raised the ineffective assistance claim, moved to find a waiver.

[00:44:22] Speaker 02:
New counsel filed a statement.

[00:44:25] Speaker 00:
July 10, 2018, defendant's motion for acquittal and new trial.

[00:44:30] Speaker 00:
Who did that one?

[00:44:30] Speaker 00:
His counsel.

[00:44:32] Speaker 00:
That's his counsel?

[00:44:33] Speaker 00:
Yes.

[00:44:33] Speaker 00:
And in that one, they address, he says... Oh, I'm sorry.

[00:44:38] Speaker 00:
In the footnote, it should be clear these claims, that is, the ineffective claims, would be submitted separately as part of a 2255 motion, if at all.

[00:44:48] Speaker 00:
Accordingly, defendant is deferring those claims for consideration, if at all, under 2255.

[00:44:54] Speaker 00:
That said, this shouldn't be such a big surprise.

[00:44:59] Speaker 00:
This is page 112.

[00:45:05] Speaker 00:
I don't know what it's page 112 of.

[00:45:19] Speaker 00:
On September 11th, 2017, it was filed in the district court on July 10th, 2014.

[00:45:26] Speaker 02:
I'm sorry, Your Honor, that's the defendant's.

[00:45:27] Speaker 00:
Oh, that's the defendant's, not the lawyer.

[00:45:29] Speaker 00:
Pro se.

[00:45:30] Speaker 00:
That's the pro se one.

[00:45:31] Speaker 02:
That's the pro se motion.

[00:45:32] Speaker 02:
Uh-huh.

[00:45:33] Speaker 02:
In response to that, the government sought a waiver.

[00:45:37] Speaker 00:
Wait, wait, wait.

[00:45:38] Speaker 00:
This one is signed by Keira Ann West.

[00:45:40] Speaker 04:
Yeah, that's new counsel.

[00:45:42] Speaker 00:
DC bar number 993523.

[00:45:44] Speaker 00:
That's the new counsel, right?

[00:45:48] Speaker 02:
I'm sorry, Your Honor, I was looking at a different page 112.

[00:45:54] Speaker 02:
Yes, Ms.

[00:45:54] Speaker 02:
West was his appointed counsel for purposes of filing the new trial motion, and she is the one who filed this, saying that he's going to submit them as part of the 22 video.

[00:46:06] Speaker 00:
Can we move to the expert testimony?

[00:46:10] Speaker 00:
Why has the government fallen down on the job again?

[00:46:14] Speaker 00:
Everything was going very well up until the moment of Miller, and your recollection was refreshed about how to counsel both expert witnesses and prosecutors about how to ask these questions.

[00:46:30] Speaker 00:
All you have to do is, is it consistent with, rather than use the word intent and make clear?

[00:46:36] Speaker 00:
Why are we, what's happened here?

[00:46:38] Speaker 02:
The question was inartfully worded.

[00:46:41] Speaker 02:
It did not use the word intent, Your Honor.

[00:46:43] Speaker 00:
I know, but you must realize there's a problem because your brief does not argue no error, it argues no plain error.

[00:46:50] Speaker 00:
This is a good signal from the U.S.

[00:46:52] Speaker 00:
Attorney's Office that it understands there's a problem.

[00:46:55] Speaker 02:
The U.S.

[00:46:56] Speaker 02:
Attorney's Office and the trial attorney

[00:46:58] Speaker 02:
understands that the question was poorly worded.

[00:47:01] Speaker 02:
I don't actually think, and this is splitting hairs, I don't actually think there is rule 704 error because fundamentally the question for whether error exists at all is whether it is clear that the expert is testifying on the basis of his knowledge of general criminal practices and not on some special knowledge of the defendant's mental process.

[00:47:21] Speaker 04:
But that's the only reason I mentioned the closing argument by the prosecutor.

[00:47:24] Speaker 04:
I mean, at least the prosecutors thought that's what the expert had testified.

[00:47:30] Speaker 02:
I would disagree with your reading of the closing argument.

[00:47:34] Speaker 02:
I don't believe the government in closing argument focused on the poorly worded questions as opposed to the expert's testimony as a whole.

[00:47:43] Speaker 02:
And the expert's testimony as a whole, absolutely.

[00:47:46] Speaker 04:
He told you who distributed.

[00:47:48] Speaker 02:
I don't believe the prosecutor said that.

[00:47:51] Speaker 02:
The prosecutor said the intent is easy.

[00:47:54] Speaker 02:
You can look at the expert's testimony.

[00:47:55] Speaker 02:
And the expert had ample testimony about the amounts at issue here, the amounts a typical user uses.

[00:48:02] Speaker 04:
But you know, jurors use their common sense.

[00:48:05] Speaker 04:
All right.

[00:48:07] Speaker 04:
Prosecutor says this is easy.

[00:48:09] Speaker 04:
Look at the expert's testimony.

[00:48:12] Speaker 02:
And the expert's testimony.

[00:48:14] Speaker 04:
He distributed.

[00:48:15] Speaker 02:
The expert's testimony in context was clear that the expert who had no first-hand knowledge of this case, who was not an arresting officer.

[00:48:23] Speaker 04:
So your argument before this court suggests that we are going to face more, to quote, falling down.

[00:48:30] Speaker 00:
This is the same reason I asked the question.

[00:48:33] Speaker 00:
I was hoping the government's answer was we will put into our training programs

[00:48:37] Speaker 00:
a model for how to ask these questions which do not create error.

[00:48:42] Speaker 02:
We will ensure that our prosecutors don't ask as poorly worded questions as these again.

[00:48:47] Speaker 02:
I recognize these questions were badly worded.

[00:48:51] Speaker 02:
The trial attorney who is now in management recognizes they were poorly worded.

[00:48:58] Speaker 02:
we don't expect this type of poorly worded questions to repeat themselves.

[00:49:03] Speaker 02:
I am splitting hairs as to whether it was error at all because I think the question of whether it was error at all looks to the context of the testimony and the context of the testimony was entirely made in terms of

[00:49:16] Speaker 02:
common users, common distributors, the general practices of the drug trade in the District of Columbia.

[00:49:22] Speaker 02:
And I think that the context of the testimony as a whole makes clear that no jury would have understood these two questions to all of a sudden switch focus from general practices to this specific defendant, particularly where the answers immediately went after the poorly worded questions to general practices.

[00:49:43] Speaker 02:
If there are no further questions, the government would ask that the judgment of the district court be affirmed.

[00:49:58] Speaker 00:
We'll give you another two minutes.

[00:50:01] Speaker 00:
The Fert lawyer was able to encapsulate an hour and a half argument into only two minutes.

[00:50:06] Speaker 00:
I'm sure you'll be able to do this.

[00:50:09] Speaker 03:
I would like to say something about DeBango and Fennel, which were both pre-Rashad cases.

[00:50:16] Speaker 00:
They were, but they were.

[00:50:18] Speaker 00:
So Fennel relies on DeBango and Rashad relies on Fennel.

[00:50:24] Speaker 00:
And when Rashad explains what our position is, it's based on that line of cases.

[00:50:30] Speaker 03:
And the position is a policy position.

[00:50:32] Speaker 03:
This Court has adopted a policy and a policy that is designed to allow defendants to bring ineffective assistance of counsel claims in a sense of what is fair and a system that is designed to streamline or make things efficient.

[00:50:50] Speaker 03:
And Rashad simply articulates that fairness and efficiency.

[00:51:02] Speaker 03:
Part of that is that you have to have counsel to understand whether your prior counsel was ineffective.

[00:51:12] Speaker 03:
And if Ms.

[00:51:13] Speaker 03:
West was possibly ineffective, Mr.

[00:51:19] Speaker 03:
James needed counsel to know that if Mr. Sussman.

[00:51:22] Speaker 00:
Now he has that counsel and you are that counsel and you have not raised the point.

[00:51:27] Speaker 00:
I would feel differently about this if you were arguing that Ms.

[00:51:31] Speaker 00:
West was also ineffective in not raising it but you're not arguing that.

[00:51:36] Speaker 03:
Well I would say that

[00:51:40] Speaker 03:
The bank, neither the bingo, nor fennel, nor Rashad turn on the presence of new council.

[00:51:46] Speaker 03:
They turn on fairness to the defendant and efficiency and what the court's suggesting

[00:51:52] Speaker 03:
simply because we have new counsel to insert a new rule into the Rashad line of cases that once you have new counsel, new counsel has to raise all of those ineffectiveness claims, otherwise that counsel is ineffective.

[00:52:05] Speaker 03:
And you've layered this twice.

[00:52:08] Speaker 03:
You have undermined Rashad efficiency.

[00:52:13] Speaker 03:
and you have placed another barrier in front of the defendant in terms of fairness.

[00:52:20] Speaker 03:
So the overarching rationales of Rashad, which Finnell and DeBango underlie and inform, are frustrated.

[00:52:31] Speaker 03:
So all I'm saying is, under the overarching rationale of Rashad,

[00:52:39] Speaker 03:
Mr. James should be allowed to bring this claim here because the court's ultimate goal is to get to the bottom of the ineffectiveness claim and to not place barriers and to streamline it.

[00:52:56] Speaker 03:
And it's unfortunate that Mr. James represented himself, put these claims in, and thought

[00:53:05] Speaker 03:
or was convinced or Miss West, I don't know what the circumstances of removing them or withdrawing them, but just as with any litigation, when something's withdrawn without prejudice and there is no, in a 2255 context, that's fennel.

[00:53:28] Speaker 03:
You have to raise everything in the 2255.

[00:53:32] Speaker 03:
And in the bingo, the defendant failed to prove prejudice after actually having a hearing.

[00:53:41] Speaker 03:
So in both of those cases, merits of the ineffectiveness claim were reached.

[00:53:45] Speaker 03:
In this case, there were no merits reached.

[00:53:47] Speaker 03:
The government didn't have to brief anything.

[00:53:49] Speaker 03:
They asked for the waiver and the claim was withdrawn.

[00:53:54] Speaker 03:
So not only would the fairness and efficiency that Rashad sought to create be distorted, there would be another part of analysis in ineffectiveness claims whenever there was new counsel or the defendant was pro se or whenever there was a claim that was asserted and withdrawn.

[00:54:23] Speaker 03:
And I respectfully disagree that there is a requirement found anywhere in Rashad, DeBango, or Fennel that you must raise, whenever you are in the position to file a new trial motion with new counsel, you must raise all ineffectiveness claims.

[00:54:43] Speaker 03:
That would be a step beyond.

[00:54:46] Speaker 03:
I understand because it's a policy, the court can choose to narrow or...

[00:54:50] Speaker 00:
point would be that once you've raised it, if your counsel expressly withdraws it and waives it for purposes of direct appeal, unless you challenge what your new counsel did, in that circumstance, at least Rashad wouldn't apply.

[00:55:07] Speaker 03:
I think that is a fair point.

[00:55:10] Speaker 03:
I am in disagreement that the statement that the court read by Ms.

[00:55:14] Speaker 03:
West actually does that.

[00:55:15] Speaker 03:
I think the statement is very ambiguous.

[00:55:18] Speaker 03:
This memorandum supplements the insufficiency of evidence contention and does not supplement or discuss other motions, trial objections, or ineffectiveness claims against trial counsel, which he reasserts here.

[00:55:28] Speaker 03:
So it's unclear

[00:55:30] Speaker 03:
Is this what council is saying?

[00:55:33] Speaker 03:
Is Mr. James reasserting them here?

[00:55:36] Speaker 03:
It's completely confusing, but which can more properly be addressed later pursuant

[00:55:45] Speaker 03:
We all know that if there are other claims out there, they can be raised in a 2255 if they are not raised in this direct appeal process.

[00:55:55] Speaker 03:
But once they are decided in this direct appeal process, they cannot because of estoppel principles.

[00:56:01] Speaker 03:
And there's nothing inconsistent with that.

[00:56:03] Speaker 03:
It, again, goes right back to the twin goals of Rashad of fairness and efficiency.

[00:56:12] Speaker 00:
For the questions.

[00:56:12] Speaker 00:
Thank you.

[00:56:13] Speaker 00:
Take the matter under submission.