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Number 15-3027, United States of America versus Carlos Aguilar, also known as LOS Appellant.

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Ms.

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Hashimoto for the appellant, Mr. Ewing for the appellate.

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Good morning.

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Good morning.

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May it please the court, Erica Hashimoto on behalf of Mr. Aguilar.

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The violation of Mr. Aguiar's Sixth Amendment right to public voir dire implicates the core fair trial guarantee of trial before an impartial jury.

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In this case, the judge decided to hold the voir dire proceedings, all of the individualized questioning of the panel members, in a back room, not set aside for trial.

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There were no members of the public in the room, and the entirety of the individualized voir dire

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happened in that back room.

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For those reasons, this court should reverse the trial court's erroneous decision that Mr. Aguiar's fair trial rights were not violated.

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In addition, because the district court erroneously held that Mr. Aguiar had not demonstrated ineffective assistance of counsel, this court should remand

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for consideration of his ineffective assistance at plea council issue.

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The core of Mr. Aguiar's fair trial rights were violated in ways that the court in Weaver recognized could lead to ineffective, or I apologize, could lead to ineffective assistance for failure to

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to raise a fair trial, public trial right.

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So let me ask you, the district court issued an opinion indicating what had happened after the fact.

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She made no findings prior to deciding where to conduct the voir dire, but we do know that she went to the largest courtroom in the courthouse

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and asked a number of questions while people were seated in the largest courtroom in this courthouse.

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So to that extent, could it be said that by her actions, she was already making a determination that she was trying to ensure that all the defendants

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would have an opportunity with their lawyers and whoever else could fit in the courtroom to hear what was going on.

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Now, the separate part of going into the jury room, I don't know if you've seen the ceremonial courtroom, but conducting an individual voir dire.

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Your brief says, well, it was done for convenience.

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I agree, it was done for convenience.

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It presented just geographically and physically a difficult problem.

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With respect to the back room issue, you're correct that the district court

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moved back there because of the comfort and convenience.

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And that's exactly what the court in Presley said is not enough.

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With respect to whether there were other accommodations that could have been made that would have preserved the comfort.

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So the district court then, in your view, was required to use a husher?

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Yes, that would have been one option.

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And at that point, what would another option have been?

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So it shows she could have kept it open for the parts that were not private and then used hushers for the questioning that was more sensitive.

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Well, I've been called for jury duty, and there are a lot of general questions that you answer, and that's what happened here.

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And then if you answer affirmatively to any of those questions, the judge questions you individually.

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So I just need to be clear here that, in your view, the district court had no option other than to remain in the largest courtroom and use a hussher.

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When no one objected, and to this date, no one has claimed any of the interests that are involved were in any way sacrificed other than

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the point you make regarding his mother and sister.

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So a couple of points, Your Honor.

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First of all, I don't think that the district court needed to stay in the ceremonial courtroom.

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What it did was it had the panel members, most of them leave, and it kept small groups of them, which could have easily been accommodated in any of the regular district court courtrooms.

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It did not need the ceremonial courtroom for that.

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So the district court where multiple defendant trial has to move the individual part to another part of the courthouse to a different courtroom.

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I'm trying to understand, I get the point and I understand what the Supreme Court's holdings are, but I'm trying to understand how we apply it in this context where no one objects.

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I think that there were a couple of options open to the district court.

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So to the extent that it wanted to keep it in the ceremonial courtroom, and that courtroom was available, it could have done the individualized voir dire in there.

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But it could also, if the ceremonial courtroom was not available, have done it in any of the other courtrooms, because there's plenty of seating for the small groups.

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I think it also could have done exactly what it did, as long as it made the requisite findings, right?

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That's exactly right.

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It's not that there's a per se bar against doing what the district court did.

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It's that certain findings have to be made before the district court does what it did.

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That's your view of the merits of the public trial issue.

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That's exactly right.

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So had the court determined that there was no reasonable alternative and made the other requisite Waller findings, it could have done it in the back room.

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Go ahead.

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But then, even if that's the case, then you still have to contend with Weber, the recent decision in Weber.

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And so, Weber tells us that in circumstances that are not markedly different from the circumstances of this case, there wasn't the prejudice prong satisfied under Strickland if you take into – if you assume, as the Supreme Court did in Weber, that that encompasses fundamental unfairness.

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So the Supreme Court says on the facts of Weber, there's not the type of fundamental unfairness that would require the granting of relief on collateral review.

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What's the basis for drawing a distinction from Weaver since this case, at least in a good number of respects, is similar to the factual circumstances that were mentioned there?

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I think there are three big differences.

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The first is that the district court here chose to remove it completely from the courtroom, the individualized four-deer, and there is

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Part of the reason that there is a right to public voir dire is so that the public can see what's happening.

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This was completely removed in a way that it was not in Weaver.

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Second, and the Weaver court even noted that it was not in some secret back room in Weaver.

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Second, in Weaver, the rest of the panel was still in the courtroom.

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It was just a matter of nobody else could fit.

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Here, there was nobody, none of the other panel members

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were present, that takes away the gravity of the voir dire proceedings.

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But don't you have to show, under Weaver, that it made a difference, that this error, if it was an error, would have led to a different result?

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And that's a tough road to hoe, isn't it?

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And what have you done here to show that it's likely that there would have been a different result?

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I don't think we do need to show the likelihood of a different result.

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You don't think Weaver requires that?

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No.

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I think the fundamental unfairness, if you can show that it was a fundamental... I thought that's what Weaver was all about, is that we aren't going to presume that structural unfairness leads to a different outcome.

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You've got to show it.

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You've got to show it here.

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And what shows it here is the fact that the entire individualized for our deer

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was completely shielded from anybody.

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And where you have a violation that is so complete and egregious, Weaver, I think, leads open that that can lead to a fundamentally unfair trial.

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Weaver recognized the difficulty of showing

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specific error here or specific, the normal form of stricken teachers.

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There has been no showing that the potential harms flowing from a courtroom closure came to pass

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in this case.

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For example, there is no suggestion that any juror lie.

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It's very specific, and I don't see where you've made that showing.

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You're telling us there's a problem with courtroom closure.

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There is a problem.

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But as I read Weaver, and maybe I'm missing it.

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Show me something else.

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Maybe I'm missing it.

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You have to show more than that there was a... You have to show how the courtroom closure led to a different result.

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The different result that I think we can show here is that there's a significant likelihood that the 12 jurors who heard Mr. Aguiar's case are not the same 12 jurors who would have heard the case had there been public voir dire.

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And so- And that they would have come to a different result, right?

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Don't you have to show that?

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only for standard Strickland prejudice.

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And the court's opinion in Weaver leaves open the fundamental unfairness analysis.

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So what you have here is, as I understand it, the fact that his mother and sister were not present to support him, your words, during the voir dire.

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but no allegation or argument that any of the four values were sacrificed here.

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I think that's what Judge Griffith was exploring with you.

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Is that correct?

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I think that there is a sense in which the values underlying the right to a public trial are implicated here.

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To be sure, there were not witnesses in the normal sense who were testifying during the voir dire, during the individualized voir dire proceedings.

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But what there were were individual jurors who were under oath.

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And Mr. Aguiar had every interest in ensuring that they were telling the truth and abiding by their oath.

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And the public nature of jury selection, just like the public nature of a trial,

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helps to ensure that those jurors were being truthful in their responses so that his right to an impartial jury was protected during... Can I just ask on this issue, just the basic architecture of what we're looking at?

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So as I understand, Weaver...

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You don't have to show, at least Weaver doesn't dictate that you need to show that the result would have been different in the sense that he would have been acquitted.

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So it's not that the result of the proceeding necessarily has to be different.

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Weaver sort of leaves that open and says, even if you don't have to show that, you still have to show fundamental unfairness.

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At least assume that you have to show fundamental unfairness.

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I take it in line with what Judge Griffith was asking, that in order to show fundamental unfairness,

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Presumably, you'd still need to show that there's been fundamental unfairness of the type that underlies the public trial guarantee and the source of things that the public trial guarantee is designed to protect, i.e., juror dishonesty, prosecutorial judicial misconduct, bias of the tribunal, the values that are protected by the public trial guarantee.

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With respect to that, the flaws in the process would have to manifest some way that would implicate those considerations.

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And it's unclear to me how the difference between the facts of Weaver and the facts of this case would implicate those considerations in a way that would suggest that we should reach a different result here with respect to fundamental unfairness than the Supreme Court did in Weaver.

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I think the Supreme Court's notation that fundamental unfairness could be shown, for instance, if the testimony of witnesses were taken outside of the public

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trial sphere, that that would be sufficient to show fundamental unfairness.

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Where you've got completely closed off, no members of the public at all.

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Still have a record.

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The record was still made.

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The record was still made, although that would be true even if a juror, I'm sorry, even if a witness were testifying completely in a closed juror, a closed room.

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For purposes of voir dire, the importance of things that do not show up in a transcript are really important.

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So all of the body language of the potential juror as he or she is answering the questions, the extent to which it looks like they are or are not telling the truth, all of that

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is the reason that there is the right to public voir dire.

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And because it was so categorically and completely shut off here, that I think is what leads to fundamental unfairness.

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Can I just ask you one question on your other?

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Yes.

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So there's the other one about the fleet.

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Yes.

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With respect to that, there's an affidavit that says that had

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proper advice been given about the consequences of not accepting the plea that the had proper advice been given that he would have accepted the plea plea offer.

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Yes.

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Right.

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And so then the question becomes there's the prejudice question and there's also the deficient performance question with respect to deficient performance.

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What's your view of what counsel should have done?

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Council should have advised his client what

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of the risks of going to trial, which is a mandatory life sentence.

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Which specific ones?

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What specific thing was not said that should have been?

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That there was the possibility of a mandatory life sentence if he went to trial.

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At the point at which trial counsel was advising Mr. Aguiar, it knew that the government was seeking 30-year mandatory minimum 924 Cs.

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And it also knew from the plea offer that had been made, assuming that counsel had read it, that there was the possibility of more 924Cs.

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Those two facts in combination and... Where did the more come from?

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Because the plea offer was with one 924C count, right?

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Yes.

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And the plea offer also said that if the plea were turned down, more charges could be brought so that the government gave up its right to bring additional

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charges if he took the plea.

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Now, in this case, the district court, an experienced judge, held a hearing to anticipate these types of collateral arguments.

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So there was an extended colloquy going on about did your client want to accept the plea.

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And the prosecutors, I recall, mentioned that he may well be a career

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And given that there was this opportunity, and I understand the limits of what an individual defendant might say in the colloquy.

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Nevertheless, we have all this law on the colloquy.

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What was missing here?

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What was missing was an accurate assessment for him of what would have happened, what the potential risks were of going to trial.

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So what the... But could I just, what I'm trying to press you on is he had a plea offer with one 924C count.

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Yes.

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And you're not, as I understand your argument, suggesting that that plea as such was not adequately discussed with...

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Mr. Aguilar, with his counsel.

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So he knew he was facing a trial on multiple armed bank robberies.

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He knew that the government could add charges if he did not accept the plea.

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Why should we presume that

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what the district court covered in the colloquy does not show either, does not show deficient performance.

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That's all.

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What Mr. Aguirre was told at that January hearing and the plea offer had already expired at that point.

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So in some ways that colloquy is

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Irrelevant because the government had said that the plea offer was no longer open and but but what he was told was that if he went to trial he was looking at 457 to 481 months.

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That's Appendix 177 to 178.

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That's 38 to 40 years.

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What government council had also said was that if he took a plea, if he had taken that plea, he was looking at 430 to 447 months, which is 36 to 37 years.

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So what he heard at that January colloquy was that if he took the plea, he would save himself two years.

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or at most three.

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And if he went to trial, he was looking at 38 to 40 years.

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Given that understanding, he would have no reason to take the plea.

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He didn't know there was nothing.

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That became clear with the 924C, didn't it?

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The government was not offering him a walk here.

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The government definitely was not offering him a walk.

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But what nobody ever explained to him on this record is that if he went to trial on those two 924Cs, he was looking at a mandatory life sentence without parole.

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And there's no- So somebody should have asked, did your counsel tell you that the second 924C will entail another mandatory minimum of 25 years?

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Should it have been that specific?

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It should have told him that he was looking at a mandatory life sentence with the two 924Cs.

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The second 924C would have resulted in a mandatory life sentence.

[00:20:45] Speaker 01:
Well, of course, you know, he wasn't even, and all we know is what's in the affidavit because the district court has seen those facts to be true.

[00:20:51] Speaker 01:
We don't even know that he was aware of the possibility of a second 924C.

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That's correct.

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So he wasn't told about the possibility of second 924C, and he wasn't told about the sentencing consequences of the potential second 924C, which would have been mandatory life imprisonment.

[00:21:06] Speaker 01:
That's what Mr. Aguilar's affidavit would suggest.

[00:21:12] Speaker 04:
That's exactly right.

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And so not knowing that he was looking at mandatory life at trial, he couldn't adequately assess the risks or benefits of going to trial or taking the plea.

[00:21:23] Speaker 05:
Why don't we hear from the government?

[00:21:24] Speaker 05:
We'll give you some time on your bubble.

[00:21:26] Speaker 04:
Thank you.

[00:21:34] Speaker 05:
Good morning.

[00:21:35] Speaker 02:
Good morning, Your Honor.

[00:21:36] Speaker 02:
May it please the Court, James Ewing for the United States.

[00:21:39] Speaker 02:
As this Court's questions pointed out, Weaver defeats Appellant Courtroom closure claim because he can't show Strickland prejudice.

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We know from Weaver that Strickland prejudice is not shown automatically when a courtroom closure claim is raised in an ineffective assistance of counsel context.

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And Appellant doesn't even attempt to show traditional Strickland prejudice that is a reasonable probability of a different result at trial, nor could he show that.

[00:22:07] Speaker 03:
Is that what he needs to show?

[00:22:08] Speaker 03:
You say under traditional Strickland.

[00:22:10] Speaker 03:
After Weaver, does he need to show that?

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A different result in trial?

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Different outcome?

[00:22:15] Speaker 02:
Yes, your honor, we were assumed for the sake of that argument that there was a second way that you can demonstrate Strickland prejudice.

[00:22:22] Speaker 02:
That is to show a fundamentally unfair trial in the courtroom closure context.

[00:22:27] Speaker 02:
We don't we don't believe in so we didn't really pass on that.

[00:22:30] Speaker 02:
it just assumed it for the sake of argument.

[00:22:32] Speaker 02:
We believe that under Gonzalez-Lopez and cases like that, a Sixth Amendment ineffective assistance of counsel claim is not complete unless and until the appellant can show a reasonable result of a different, a reasonable possibility of a different result at trial.

[00:22:49] Speaker 02:
But even if you assume for the sake of argument, as Weaver did, that there's this second way to show Strickland prejudice, which is really all appellant has here,

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then this still was not fundamentally unfair.

[00:23:01] Speaker 02:
It was interesting.

[00:23:01] Speaker 02:
Weaver talked about four different aspects of why, what happened in that case, which was a complete closure of the voir dire process, was not fundamentally unfair.

[00:23:17] Speaker 02:
One, appellant's trial was not conducted in a secret or remote place.

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Trial, same here.

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Two, the closure was limited to the jury voir dire, same here.

[00:23:26] Speaker 02:
Three, the court remained open during the evidentiary phase of the trial.

[00:23:30] Speaker 02:
Same here.

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Months, months of evidentiary presentation of the evidence in this case.

[00:23:37] Speaker 02:
Every day it was open to the public.

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Four, there was a record made of the proceedings that does not indicate any basis for concern other than the closure itself.

[00:23:46] Speaker 02:
And that was we were talking about the fundamentally unfair aspect, which again, it just presumed for the sake of argument.

[00:23:52] Speaker 02:
All those factors are here as well.

[00:23:55] Speaker 02:
And so for the same reasons that the closure in Weaver did not render that trial fundamentally unfair, this trial wasn't fundamentally unfair either.

[00:24:06] Speaker 01:
I didn't read you to be pressing the argument that we ought to affirm on the basis that traditional strickland prejudice is required.

[00:24:12] Speaker 01:
I thought your argument really was that if we take up the question in the same way that the Supreme Court did in Weaver,

[00:24:19] Speaker 01:
In other words, assuming that there's a fundamental unfairness way to prove Strickland Prejudice as opposed to the result would have been different way to prove Strickland Prejudice, that you still win?

[00:24:29] Speaker 02:
We do.

[00:24:30] Speaker 02:
We win either way, Your Honor, and that is our submission.

[00:24:32] Speaker 02:
But just as Weber did, we do quarrel a little bit with the fact that you can show Strickland Prejudice

[00:24:38] Speaker 02:
in some other way other than showing a reasonable probability of a different result.

[00:24:43] Speaker 01:
Now, there's a... I'll quarrel with that, but the Supreme Court already decided a case that at least didn't dictate that we accept that conclusion.

[00:24:51] Speaker 01:
It specifically addressed the case on the hypothesis that fundamental unfairness is a way to prove stricken prejudice.

[00:24:58] Speaker 02:
I agree, Your Honor, that it... we were presumed that.

[00:25:01] Speaker 05:
It didn't really pass on the question specifically, but... No, but, I mean, otherwise it's an impossible

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burden to meet.

[00:25:09] Speaker 05:
I mean, how could you show that just because a part of the voir dire was closed that you had been acquitted?

[00:25:16] Speaker 05:
I mean, you can hypothesize an extraordinary set of circumstances, but otherwise it's an impossible burden.

[00:25:23] Speaker 05:
So I thought that's what the Supreme Court was getting at.

[00:25:25] Speaker 05:
It's fundamentally unfair.

[00:25:27] Speaker 05:
This is a structural guarantee.

[00:25:32] Speaker 05:
And so a court might just conclude that if you're going to hold the entire

[00:25:37] Speaker 05:
individual voir dire in a back room where no one can see what's going on, who's a member of the public as opposed to counsel.

[00:25:46] Speaker 05:
You know, that's just an unfair situation.

[00:25:48] Speaker 05:
Fundamentally, it's inconsistent with our system of justice.

[00:25:52] Speaker 02:
And Your Honor, you can presume that as the Supreme Court did in Weber, and we still win for those same four factors.

[00:25:59] Speaker 02:
But, you know, the Court has looked at this in cases like Cronick and Powell versus Alabama, and they've looked at it in the situation of

[00:26:05] Speaker 02:
something that where, you know, maybe the, maybe the appellant couldn't show a reasonable probability of an acquittal, for example, but it's akin to a complete deprivation of counsel.

[00:26:17] Speaker 02:
And something that rises to that level, you know, it's, it's not worth it to litigate the issue.

[00:26:22] Speaker 05:
Well, what, Presley was half a day.

[00:26:25] Speaker 05:
All right.

[00:26:25] Speaker 05:
So the Supreme Court had a problem with that.

[00:26:27] Speaker 05:
Okay.

[00:26:29] Speaker 05:
That's all I'm trying to get at here.

[00:26:30] Speaker 05:
And I thought that's what the Weaver was trying to acknowledge.

[00:26:35] Speaker 02:
Well, I think what Weaver was saying was that, you know, and Weaver was talking, it's interesting that Weaver said, you know, we're just talking about the closure of Wadir.

[00:26:45] Speaker 02:
But if you look at the closure, just the Sixth Amendment right to a public trial generally, you could easily consider and think about a much more extreme example where, for example, you know, the entire trial was closed or held in some secret location or something.

[00:27:03] Speaker 05:
So the fact that his mother and

[00:27:06] Speaker 05:
his girlfriend were not present during the voir dire, and the fact that there was some discussion of evidentiary motions in this back room.

[00:27:19] Speaker 05:
But that's simply not enough to tip the balance in.

[00:27:23] Speaker 05:
It has to be almost a smoking gun as to one of the four values that is at stake here.

[00:27:32] Speaker 02:
We think that's right, Your Honor.

[00:27:33] Speaker 02:
I mean, yeah, I mean, that was the teaching of Weaver, is that, I mean, before Weaver, there was a circuit split on whether he even had to show prejudice at all.

[00:27:39] Speaker 02:
And so now we know the answer to that question, they have to show prejudice.

[00:27:42] Speaker 02:
He hasn't even tried to show the traditional Strickland prejudice.

[00:27:46] Speaker 02:
And just to be clear, he couldn't show that.

[00:27:50] Speaker 02:
The government presented DNA stills from videos from these bank robberies.

[00:27:55] Speaker 01:
Which would have been equally true on direct appeal.

[00:27:59] Speaker 01:
I mean, that's the dilemma with structural error and collateral review.

[00:28:11] Speaker 02:
I agree, Your Honor, too.

[00:28:12] Speaker 02:
I guess I'll quarrel a little bit with

[00:28:14] Speaker 02:
I mean, I think if this would have been a preserved error, he certainly would have won under Presley v. Georgia.

[00:28:20] Speaker 01:
Even if it was unpreserved, the plain error would apply, but I don't know that we know that he wouldn't prevail on direct appeal under a plain error standard for a structural error.

[00:28:31] Speaker 02:
We believe he likely wouldn't prevail based on a number of factors, but the Court doesn't need to reach that here.

[00:28:38] Speaker 02:
You know, just going back to Judge Rogers' question about these other issues that were covered during the void here process.

[00:28:48] Speaker 02:
I guess we'd say a number of things about those.

[00:28:50] Speaker 02:
One, the district court judge was not making rulings in the back room or litigating motions.

[00:28:56] Speaker 02:
You know, Federal Rule of Criminal Procedure 43B3 says,

[00:29:00] Speaker 02:
If you're just talking about the law, then the defendant doesn't even have to be there, much less the public.

[00:29:05] Speaker 02:
And the normal way that we see that is, for example, in a jury instructions conference or something like that.

[00:29:10] Speaker 02:
But secondly, if you look at, for example, the DNA issue that was discussed a little bit in the room, look at docket entries 257, 259, 283, and then finally docket entry 305.

[00:29:25] Speaker 02:
These are public filings from both sides on this DNA issue.

[00:29:28] Speaker 02:
The issue was what would the government be allowed to present regarding the DNA return in this case.

[00:29:33] Speaker 02:
And docket entry 305 is the district court's published opinion about what they would be able to do.

[00:29:40] Speaker 02:
So this was not some sort of secret litigation that was going on in the back room.

[00:29:44] Speaker 02:
This was fully fresh fleshed out on the record.

[00:29:47] Speaker 02:
And if you look at the kind of the last day of

[00:29:52] Speaker 02:
Individual one year.

[00:29:53] Speaker 02:
I believe it's actually the next morning.

[00:29:54] Speaker 02:
So the April 12th and this is the April 12th transcript at 1037 to 1044 1046 to 1052 They're discussing these issues open in open court on the record.

[00:30:08] Speaker 02:
So there's there's nothing inappropriate about

[00:30:11] Speaker 02:
a bad aspect of what went on in the, it's actually in the jury room behind.

[00:30:17] Speaker 01:
Can I, can I take you to, unless my colleagues have further questions on this, can I take you to the other ineffective?

[00:30:21] Speaker 01:
Yes, Your Honor.

[00:30:22] Speaker 01:
So, do you take issue with the proposition that counsel generally should advise a defendant about charges that might be brought if a pleas, a plea offer is not accepted?

[00:30:36] Speaker 02:
Well,

[00:30:38] Speaker 02:
No, to the extent, but this court said in booze that it's ineffective assistance of counsel in the Laffer versus Cooper context and the plea context to give a plainly incorrect estimate of the likely sentence.

[00:30:53] Speaker 02:
And it's difficult to be clairvoyant about each and every charge that might be coming down the pipe.

[00:30:59] Speaker 02:
I mean, I think there's a continuum, right?

[00:31:01] Speaker 01:
Sure.

[00:31:01] Speaker 01:
And I think Strickland's deficiency prom accounts for that, because it just has to be reasonable.

[00:31:06] Speaker 01:
You're right, you don't need clairvoyance.

[00:31:08] Speaker 01:
But if there are things that are sufficiently in the offing that aren't discussed with a client, then that can be an effective assistance to counsel because the declining of plea without that information in mind turns out to be a terribly bad decision.

[00:31:22] Speaker 01:
We already know that from Padilla because you have to discuss immigration consequences.

[00:31:26] Speaker 01:
Can't be clairvoyant about those either.

[00:31:29] Speaker 02:
Well, Padilla talked about the concept of something being readily known.

[00:31:32] Speaker 02:
And in that case, there was a list of deportable offenses that was readily known.

[00:31:37] Speaker 05:
I know, but the argument that counsel makes is perfectly obvious what was going to happen here.

[00:31:44] Speaker 02:
Well, I mean, I think there's, there's kind of a way to short circuit this, Your Honor, and I think that if you look at the January 31st transcript, what's interesting about that transcript is that that was after the initial superseding indictment came down in November.

[00:32:00] Speaker 02:
where appellant was actually charged with multiple 924-C offenses.

[00:32:04] Speaker 02:
So at that point, there's no reason to be clairvoyant about what's coming down the pipe.

[00:32:09] Speaker 02:
It's already come.

[00:32:10] Speaker 01:
Well, there's a question about whether the plea offer was even on the table at that point, but I think it was gone.

[00:32:14] Speaker 01:
But as I read your brief, you're not talking about deficient performance.

[00:32:18] Speaker 01:
Your brief on this issue is about prejudice.

[00:32:21] Speaker 02:
Well, we believe we went on either prong.

[00:32:23] Speaker 02:
Did you make an argument about deficient performance?

[00:32:26] Speaker 02:
Well, the deficient performance aspect was that you don't have to be clairvoyant about every charge that's coming out.

[00:32:34] Speaker 02:
I believe it's in the last page of our brief and I believe it's in footnote.

[00:32:38] Speaker 02:
Right.

[00:32:39] Speaker 01:
So this is the very last page of your brief on a footnote that you talk about efficient performance.

[00:32:42] Speaker 01:
The rest of the argument's all about prejudice, as I read it.

[00:32:45] Speaker 01:
And even on the last page in the footnote, I didn't even read you actually to be taking a position on efficient performance.

[00:32:51] Speaker 01:
You just made a point that there aren't decisions that necessarily show that there's efficient performance here.

[00:32:57] Speaker 01:
And then you say if the court disagrees and believes that whether counsel rendered efficient performance a dispositive, the appropriate course would be remand in order to determine what advice, in fact, was dispensed.

[00:33:06] Speaker 02:
Well, the reason we would ask for a remit in the alternative is because we actually think it's unlikely that it wasn't.

[00:33:12] Speaker 01:
Sure.

[00:33:12] Speaker 01:
And you may well be right about that, that maybe actually the affidavit is wrong.

[00:33:16] Speaker 01:
And counsel, in fact, did tell Mr. Aguiar about things that he should have known about.

[00:33:22] Speaker 01:
But your brief is about prejudice, not about efficient performance.

[00:33:26] Speaker 02:
I mean, I agree that we think prejudice is the obvious way to resolve this issue.

[00:33:33] Speaker 01:
And I'm just trying to understand what argument you, in fact, made.

[00:33:36] Speaker 01:
The only place I saw a deficient performance argument being made at all, to the extent it was made, I'm not sure it was, but is in that footnote.

[00:33:43] Speaker 01:
That's correct, Your Honor.

[00:33:44] Speaker 01:
I agree with that.

[00:33:44] Speaker 01:
So really, other than the last footnote on the last page, which maybe makes a deficient performance argument, but maybe not, and I think I'm on the maybe not side of that, but we can argue about that.

[00:33:53] Speaker 01:
Your brief is about prejudice.

[00:33:54] Speaker 01:
It is.

[00:33:55] Speaker 01:
And on prejudice, how is it not prejudicial?

[00:34:01] Speaker 01:
If there are 924-C counts that could be brought and the sentence would be mandatory life imprisonment, shouldn't the client know about that in deciding whether to accept a plea that would get him a sentence other than mandatory life imprisonment?

[00:34:16] Speaker 02:
Well, a couple of responses to that, Your Honor.

[00:34:18] Speaker 02:
If you look at the January 31st colloquy, and we'd say, yes, the plea was, I think, technically off the table at that point, but the district court talked about the fact that the Booker decision had come down in the interim

[00:34:28] Speaker 02:
Also, the DNA evidence had come back in the interim.

[00:34:31] Speaker 02:
So she was saying, look, I want to talk about the pleas that were on the table.

[00:34:35] Speaker 02:
I understand that they may not be re-extended at this point, but I just want to make sure that you all understood what the plea was and the state of affairs is now.

[00:34:45] Speaker 02:
And what's interesting is that, this is Joint Appendix, page 176, Agriar's counsel said that Agriar had rejected the government's offer then,

[00:34:56] Speaker 02:
and he's rejecting it now, meaning that even in the face of these 924 seat counts, he's rejecting the government's plea offer.

[00:35:04] Speaker 01:
And one part that we think is important... But that doesn't tell us what AgriArt Council told AgriArt, which is what's relevant.

[00:35:09] Speaker 01:
AgriArt Council can stand up there and say all kinds of things.

[00:35:12] Speaker 01:
But unless there's been the relevant advice dispensed to the client, the client's claim is my counsel was ineffective because I didn't know.

[00:35:20] Speaker 01:
I wasn't made aware with the benefit of my counsel's advice that I faced life imprisonment if I forwent the plea offer.

[00:35:28] Speaker 02:
Join Appendix 177, Your Honor.

[00:35:30] Speaker 02:
The district court asked address counsel.

[00:35:32] Speaker 02:
Have you advised him in terms of 924 C and what that involves?

[00:35:37] Speaker 02:
And a panelist counsel answered yes.

[00:35:39] Speaker 02:
Joint appendix one.

[00:35:40] Speaker 01:
Sure.

[00:35:40] Speaker 01:
And that's your argument in the footnote, which is that's why we need to remand because if the advice in fact was given, then the government wins.

[00:35:47] Speaker 02:
But we went on prejudice because he can't.

[00:35:51] Speaker 02:
He can't demonstrate that he, first of all, he mischaracterizes what the government's plea offer actually was.

[00:35:56] Speaker 02:
And now he, it's easy to say now that he would have accepted a plea since he went to trial and got it.

[00:36:01] Speaker 01:
In which way is it mischaracterized?

[00:36:02] Speaker 02:
Well, he's, he calls it a, at some point he calls it a five-year plea, a ten-year plea, in the brief it's a 30-year plea, and it is colloquy.

[00:36:10] Speaker 02:
It wasn't a 30-year plea.

[00:36:12] Speaker 02:
It was a 30-year mandatory minimum sentence on the 924C, plus a plea to the RICO count, which was the top count of the indictment.

[00:36:19] Speaker 02:
which by itself would have carried another 17 to 21 years.

[00:36:23] Speaker 02:
So the government's plea offer was a plea offer to the bottom, the low end of the guidelines would have been 47 years.

[00:36:29] Speaker 02:
And an appellant simply can't show that he would have given up his right to go to trial.

[00:36:33] Speaker 01:
So suppose, is that right?

[00:36:35] Speaker 01:
Because suppose that it's undisputed, it's undisputed that everybody knew that there would have been a second 924C which would have carried a mandatory life imprisonment if the plea were rejected.

[00:36:46] Speaker 01:
Okay, and then the plea offer only has the sentences that you just outlined.

[00:36:50] Speaker 01:
Isn't it still prejudicial?

[00:36:52] Speaker 01:
Well, no, Your Honor, because the... No?

[00:36:56] Speaker 01:
The difference between 30 and some potential addition and life in prison that is not prejudicial?

[00:37:02] Speaker 02:
I guess a couple of responses to that.

[00:37:04] Speaker 02:
One, Joint Appendix 164.

[00:37:06] Speaker 02:
Granted, it was in the context of one of his co-defendants colloquies.

[00:37:11] Speaker 02:
On the same day, same day, January 31st, it was in the co-defendant Perkins colloquy.

[00:37:17] Speaker 02:
The government said, a conviction for more than one 924 seat carries mandatory life.

[00:37:23] Speaker 02:
He's sitting right there at council table.

[00:37:25] Speaker 02:
So he's on notice that that's true.

[00:37:27] Speaker 01:
I think also that seems to be proving the point because it says that knowing about mandatory life is important.

[00:37:34] Speaker 02:
But he knows by that point, he's already been charged with two 924-C counts, and he's still saying that he would.

[00:37:41] Speaker 01:
No, but that goes to the reason that we need to remand.

[00:37:44] Speaker 01:
First of all, that colloquy wasn't with Aguiar, right?

[00:37:48] Speaker 01:
The life sentence was not.

[00:37:50] Speaker 01:
Right.

[00:37:50] Speaker 01:
So it was a co-defendant.

[00:37:52] Speaker 01:
I mean, are there any cases that say that one defendant is supposed to listen intently to what a colloquy with a co-defendant

[00:38:03] Speaker 01:
and therefore this defendant is presumed to have all the knowledge that comes out of a colloquy that

[00:38:09] Speaker 01:
deals with the co-defendant?

[00:38:10] Speaker 02:
No, that's not what we're maintaining, but if you look at the way that, I mean, his colloquy was only about five or six pages later, and the way that they're talking about the 924C kind of goes throughout the whole process.

[00:38:22] Speaker 02:
So we think that, I mean, the issue is whether he was on notice of this, and we think that that demonstrates that he was on notice of it.

[00:38:28] Speaker 02:
But, you know, it's interesting to see what happened when he... That goes to division of performance.

[00:38:32] Speaker 01:
Excuse me, Robert.

[00:38:32] Speaker 01:
That goes to division of performance.

[00:38:33] Speaker 01:
I'm not...

[00:38:35] Speaker 01:
First of all, the plea offer's gone at this point.

[00:38:37] Speaker 01:
We've already talked about that.

[00:38:39] Speaker 01:
We're at a hearing where I think the government is the one that said that if you don't accept our plea by such and such date, the plea offer's gone.

[00:38:45] Speaker 01:
So the relevant question, it seems to me, is whether counsel was effective before that date.

[00:38:50] Speaker 01:
Because, well, after that date, the plea offer's gone.

[00:38:53] Speaker 01:
So the question for the client is,

[00:38:55] Speaker 01:
Do I have the right information with which to make an informed decision about accepting a plea by the deadline?

[00:39:01] Speaker 01:
And the affidavit says, I was never told that there was the possibility of a second 924C in mandatory life had I rejected the plea.

[00:39:10] Speaker 02:
A couple of responses to that, Your Honor.

[00:39:12] Speaker 02:
I understand your Honor's question.

[00:39:14] Speaker 02:
The first problem with the affidavit is it mischaracterizes what the plea offer actually was.

[00:39:19] Speaker 02:
So that goes to prejudice because it goes to the idea that he wouldn't, it's easy to say after you go to trial and you get 60 years, incidentally, he was acquitted of the mandatory aspect of the 924 season, was found guilty only of possessing two semi-automatic weapons, which is an example of why you might want to go to trial and put the government to its burden of proof.

[00:39:41] Speaker 05:
I don't see how that helps your argument.

[00:39:44] Speaker 05:
I didn't understand it in the brief either.

[00:39:47] Speaker 02:
Well, in the sense of what we really have here is kind of now he wants to say that he would have taken a plea that the low end of the guidelines was 47 years.

[00:39:58] Speaker 02:
And so we don't think he can maintain that.

[00:40:00] Speaker 05:
I guess what we're focusing on is that when the prosecutor talks, well, he may be a career criminal and all those.

[00:40:06] Speaker 05:
You know what that means.

[00:40:07] Speaker 05:
The district court knows what it means.

[00:40:09] Speaker 05:
The defendant know what it means.

[00:40:11] Speaker 05:
Did anybody tell him, look, you're facing life?

[00:40:14] Speaker 02:
Well, what the trial counsel, or what the prosecutor actually said, this is Joint Appendix 177 and 178, appellant may very well be a career criminal offender.

[00:40:24] Speaker 02:
And she didn't stop there.

[00:40:25] Speaker 02:
What she said was, that means just on the RICO count alone, you're looking at 360 months to life.

[00:40:30] Speaker 01:
So suppose this happens.

[00:40:31] Speaker 01:
Suppose that the counsel gives the advice to a client that says, the charges you face if you accept the plea have a minimum guidelines that equates to 47 years.

[00:40:43] Speaker 01:
Let's just suppose that happens.

[00:40:44] Speaker 01:
But then it turns out counsel's wrong, and it actually carries mandatory life.

[00:40:48] Speaker 01:
And then the person brings an ineffective assistance of counsel claim after the fact that, wait a minute, had I known it was mandatory life, I would have never accepted the plea.

[00:40:55] Speaker 01:
I was told by my lawyer it was a 47-year guideline.

[00:40:57] Speaker 01:
I think any court would say the prejudice would be established.

[00:41:00] Speaker 02:
Meaning if you go to trial, the bet the worst you could get was?

[00:41:03] Speaker 01:
If you accept the plea.

[00:41:04] Speaker 01:
Right.

[00:41:04] Speaker 01:
So the counsel tells a client,

[00:41:07] Speaker 01:
Accept the plea, because as I'm calculating the guidelines, your sentence is going to be 47 years.

[00:41:12] Speaker 01:
And the client says, all right, I'll take the plea.

[00:41:15] Speaker 01:
And then it turns out, actually, that the sentence is mandatory life.

[00:41:19] Speaker 01:
I think the government would even concede that in our situation there would be prejudice.

[00:41:23] Speaker 02:
And there was a similar case, that was the White case that they cited, which I think was the unpublished case.

[00:41:27] Speaker 03:
How about the Lee case?

[00:41:28] Speaker 03:
Why haven't you all mentioned Lee?

[00:41:30] Speaker 03:
Doesn't the Supreme Court's recent decision in Lee deal directly with what prejudice is in this very setting and tells us that post hoc

[00:41:40] Speaker 03:
Post-hoc arguments don't mean anything.

[00:41:43] Speaker 03:
There's got to be contemporaneous evidence that the decision, it would have been a different decision had that information been presented.

[00:41:51] Speaker 03:
And isn't your argument that Aguilar has not made that showing here that there would have been a difference?

[00:41:59] Speaker 03:
Or am I misunderstanding?

[00:42:00] Speaker 02:
I will confess to not knowing the Lee case off the top of my head, but the premise that you're presenting is that's what we're arguing, is that it's easy to say after you go to trial and are convicted and have a 60-year sentence that you would have taken a plea offer that included a 47 to 51-year guideline sentence.

[00:42:23] Speaker 01:
up your plea, together with your right to put the government to its burden of proof in exchange for a... We have an affidavit that said he would have taken a, would have made a different decision, and the district court didn't counter that.

[00:42:33] Speaker 01:
But it may be true, I mean, maybe if we remand and the district court disagrees with the affidavit, that's one thing.

[00:42:39] Speaker 01:
But we take the case on the record that's presented to us, and the district court didn't dispute that at all.

[00:42:44] Speaker 01:
It took the affidavit as a given.

[00:42:47] Speaker 01:
And you're not defending that, you're not defending the district court's rationale.

[00:42:51] Speaker 02:
Well, what the district court took as a given was that he had not been told about these multiple 924 seat counts.

[00:42:57] Speaker 02:
The district court did not take as a given, and in fact, in footnote 6 of Agri-R1, talks about the fact that

[00:43:04] Speaker 02:
The problem with the saying I would have taken the plea, she didn't take that as a given because she says... But she didn't dispute it either.

[00:43:11] Speaker 01:
In other words, I didn't read you to be arguing that we ought to decide the case on the basis that he's wrong in his affidavit and saying that he would have accepted the plea.

[00:43:22] Speaker 02:
We do believe that was wrong, and the reason why is because he...

[00:43:25] Speaker 02:
He mischaracterizes the government's plea offer in the affidavit.

[00:43:29] Speaker 01:
The fact that he mischaracterizes pejorative, he might have gotten it wrong, but the fact that he has gotten it wrong doesn't tell us that he's wrong in saying he would have accepted the plea.

[00:43:40] Speaker 01:
We don't know.

[00:43:41] Speaker 01:
Do we, I mean can we actually, can we say on this record that we know because he's not getting the sentencing range exactly right in his affidavit that we should say that actually he wouldn't have accepted the plea.

[00:43:53] Speaker 01:
How do we know that?

[00:43:54] Speaker 02:
Joint appendix 176.

[00:43:56] Speaker 02:
He's rejecting the plea then and he's rejecting it again now.

[00:43:59] Speaker 02:
Even in the face of the 2924-C counts.

[00:44:00] Speaker 02:
All right.

[00:44:01] Speaker 05:
I think we've explored this.

[00:44:03] Speaker 02:
Thank you, Your Honor.

[00:44:04] Speaker 02:
We would ask that you affirm the judgment of the district court.

[00:44:07] Speaker 05:
Thank you.

[00:44:07] Speaker 05:
All right.

[00:44:07] Speaker 05:
Thank you.

[00:44:08] Speaker 05:
Give you a couple of minutes.

[00:44:10] Speaker 05:
Thank you, Your Honor.

[00:44:12] Speaker 03:
May I ask you about Lee?

[00:44:15] Speaker 03:
Yes.

[00:44:16] Speaker 03:
He deals directly with prejudice.

[00:44:17] Speaker 03:
Let me read you from the Chief Justice's opinion, just two sentences.

[00:44:20] Speaker 03:
Court should not upset a plea solely because of post-hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies.

[00:44:28] Speaker 03:
And this is the key sentence.

[00:44:30] Speaker 03:
Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.

[00:44:38] Speaker 03:
What is the contemporaneous evidence here that would suggest that Aguiar

[00:44:45] Speaker 03:
would have acted differently had he been told.

[00:44:50] Speaker 05:
Could I just interject?

[00:44:51] Speaker 05:
Are you familiar with Lee?

[00:44:53] Speaker 05:
Because it wasn't cited by any of the parties.

[00:44:55] Speaker 04:
I have not read it.

[00:44:56] Speaker 05:
Well, in Lee, there was an evidentiary hearing on this issue.

[00:45:00] Speaker 05:
So we don't have an evidentiary hearing here.

[00:45:02] Speaker 05:
So that would be one way of distinguishing if you haven't read the case.

[00:45:06] Speaker 05:
But nevertheless, there's no allegation, I think, would be the response that Judge Griffith is focusing on about contemporaneous, other than beyond what Judge Sherina Vosson was exploring about what

[00:45:24] Speaker 05:
advice that he actually received.

[00:45:27] Speaker 04:
That's correct.

[00:45:28] Speaker 04:
And what we have, so there is certainly the affidavit that gives rise to the need for an evidentiary hearing to figure out what he was told at the time.

[00:45:40] Speaker 04:
And that would be the contemporaneous evidence.

[00:45:44] Speaker 04:
But the transcript itself demonstrates, I mean, to the extent that the January transcript is relevant at all,

[00:45:53] Speaker 04:
What it demonstrates is that he was given incorrect information about his risks if he went to trial.

[00:46:00] Speaker 04:
What he was told at that January hearing or what the government put on the record at that January hearing was that if he went to trial, he was looking at 38 to 40 years, whereas if he took the plea, he was looking at 36 to 37 years.

[00:46:17] Speaker 05:
Well, but what we're focusing on here, counsel, is what advice did he receive

[00:46:23] Speaker 05:
from his own attorney before the plea expired.

[00:46:28] Speaker 05:
And we are also told by the Supreme Court that we must indulge the presumption that counsel knows what the law is and acts accordingly.

[00:46:44] Speaker 05:
We don't presume that counsel has

[00:46:49] Speaker 05:
acted, failed to live up to his or her responsibilities.

[00:46:55] Speaker 05:
I thought that was partly why the government just added that footnote at the end as opposed to making the arguments out of the prejudice issue here.

[00:47:03] Speaker 05:
And we would get you a hearing, I suppose.

[00:47:06] Speaker 04:
Yes, and that's what needed to happen here.

[00:47:10] Speaker 04:
2255B says that the district court shall hold an evidentiary hearing unless

[00:47:18] Speaker 04:
the record conclusively shows that he's not entitled to relief.

[00:47:23] Speaker 04:
Between the affidavit, his affidavit where he says his counsel told him that he was looking at 30 years on the plea and didn't explain the risks of going to trial and the fact that we now know that he was looking at mandatory life at trial gave rise to the need for an evidentiary hearing.

[00:47:44] Speaker 01:
As I understand it, the affidavit is evidence of what was happening contemporaneously.

[00:47:48] Speaker 01:
Of course, it's going to come up after the fact.

[00:47:50] Speaker 01:
That's how trials work.

[00:47:51] Speaker 01:
We always ask about things that happened previously.

[00:47:54] Speaker 01:
And the way we get evidence about what happened previously is people testify or we get an affidavit.

[00:47:59] Speaker 01:
That's right.

[00:47:59] Speaker 01:
And the affidavit was about what happened at the relevant time.

[00:48:02] Speaker 04:
That's right.

[00:48:03] Speaker 04:
And what he says in his affidavit is his counsel told him it was a 30-year plea offer and that nobody explained to him the risks of going to trial.

[00:48:13] Speaker 04:
And given that, there has to be an evidentiary hearing.

[00:48:17] Speaker 01:
Now that might be totally wrong.

[00:48:19] Speaker 01:
If there's a hearing, it could be that the judge finds that actually

[00:48:24] Speaker 01:
that what he's saying in the affidavit is just wrong.

[00:48:26] Speaker 01:
He actually did get the advice.

[00:48:27] Speaker 01:
And counsel, usually what happens in these cases, as I understand it, when ineffective business to counsel is alleged, is the counsel testifies about the nature of the colloquy.

[00:48:36] Speaker 01:
And counsel might well prove to the district judge, if the case goes forward, counsel might well prove to the district judge that, in fact, the advice contemporaneously was given in a way that the affidavit doesn't accurately account for.

[00:48:48] Speaker 04:
That's exactly right.

[00:48:49] Speaker 05:
So what do we do with the district court's effort to explore all of these issues at the hearing?

[00:48:58] Speaker 05:
I mean, she's asked counsel, what did you tell?

[00:49:01] Speaker 05:
Did you discuss the plea?

[00:49:02] Speaker 05:
Did you talk about 924?

[00:49:03] Speaker 05:
And she asked the defendant, did you understand all this?

[00:49:09] Speaker 05:
Do you have any questions?

[00:49:12] Speaker 04:
Yes, but there's nothing in that record that demonstrates that he was ever told that he was looking at a mandatory life sentence.

[00:49:20] Speaker 04:
And so counsel says yes to the very general question, did you explain?

[00:49:25] Speaker 01:
And also in rejecting the clients, Mr. Aguias' argument, the district court didn't make any findings about what, in fact,

[00:49:33] Speaker 01:
what red vice in fact was given.

[00:49:35] Speaker 01:
She rested her decision on a different rationale, which is that given that there was no 924C count in the indictment as it existed at that stage, that there couldn't be a problem here.

[00:49:46] Speaker 01:
That's exactly right.

[00:49:47] Speaker 01:
And so we don't know.

[00:49:47] Speaker 01:
It's true that the colloquy occurred, the record shows that the colloquy occurred in the way that your colleague from the government says, but the district court

[00:49:56] Speaker 01:
as far as I read, didn't make use of that because the rationale that the district court adopted in rejecting the claim was different.

[00:50:04] Speaker 04:
That's exactly right.

[00:50:05] Speaker 04:
The district court ruled only on the ground that because the 924Cs had not been indicted at the time Mr. Aguiar rejected the plea offer, that counsel could not have been deficient in failing to discuss that.

[00:50:18] Speaker 05:
Can you point out there's no such rule?

[00:50:20] Speaker 05:
All right.

[00:50:20] Speaker 05:
Thank you, counsel.

[00:50:21] Speaker 05:
Thank you.

[00:50:25] Speaker 05:
We'll take the case under advice.