[00:00:01] Speaker 04: Case number 18-3003, United States of America versus Near-Islam Appellant. [00:00:07] Speaker 04: Mr. Zucker for the Appellant, Mr. Smith for the Appellate. [00:00:12] Speaker 03: Mr. Zucker, before you begin, I just want to extend a special welcome to our visitors from the Congressional School. [00:00:18] Speaker 03: Welcome. [00:00:19] Speaker 05: Thank you, Judge. [00:00:20] Speaker 05: John Zucker and Patricia Dose on behalf of Appellant Islam request five minutes for rebuttal. [00:00:25] Speaker 05: This case presents the exact situation that Rule 32.1 was intended to avoid and the injustice that occurred here. [00:00:34] Speaker 05: In this case, as court's well, Mr. Islam was on supervised release in two different jurisdictions. [00:00:40] Speaker 05: The same probation officer was supervising him. [00:00:44] Speaker 05: The same or comparable conditions of release were applicable in both cases, the New York case and the D.C. [00:00:50] Speaker 05: case. [00:00:51] Speaker 05: In January of 2016, the probation officer supervising him brought him in for an interview and I think conducted a search or visited his home. [00:01:02] Speaker 05: It became apparent that Mr. Islam was in violation of the conditions of release and the probation officer essentially took custody and instituted the revocation proceedings. [00:01:12] Speaker 05: They went forward in January in New York and in front of a magistrate judge and at that point that's when the violation of 32.1 occurred. [00:01:22] Speaker 03: This is an argument that could have been raised before the district court and wasn't. [00:01:28] Speaker 05: Well it was raised in that there was a [00:01:31] Speaker 05: Motion before the magistrate judge. [00:01:33] Speaker 03: I agree raised before it raised before the magistrate, right? [00:01:38] Speaker 03: and then that decision is on review in the district court and the the courts were very careful to specify the need to Renew the objection in order to preserve it right and there and there was a forfeiture well [00:01:54] Speaker 05: I think the position that the government takes is that there was a waiver due to the failure to register the objection. [00:01:59] Speaker 05: But this court has jurisdiction to consider that, notwithstanding the failure to note an objection. [00:02:07] Speaker 03: We certainly have discretion to enforce a forfeiture, or waiver or forfeiture. [00:02:13] Speaker 03: Waiver is actually worse for you than forfeiture. [00:02:17] Speaker 05: But in the context where the district judge addresses the issue, [00:02:24] Speaker 05: and exercises their discretion, the court has not only the ability, but I would suggest the duty to review that. [00:02:32] Speaker 05: And in this case, the district court clearly addressed the issue and exercises discretion. [00:02:37] Speaker 03: It said, and... It's very different for the district court in the absence of any adversary presentation to say, okay, yeah, I agree with the magistrate judge, than to have a focused... [00:02:53] Speaker 03: disputed contention where the parties briefed the issues and such and the issue was teed up for the district court. [00:03:02] Speaker 05: Clearly it would have been a better practice for the trial lawyer to have registered an objection. [00:03:10] Speaker 05: However, the district judge did review it, did make findings on the record that they had reviewed and agreed with the decision regarding there being a violation. [00:03:20] Speaker 05: More importantly, they exercised their own discretion because they rejected the record. [00:03:26] Speaker 02: Whose they represent, exercised? [00:03:29] Speaker 05: The trial court, I think it was Judge Moss. [00:03:33] Speaker 02: You're using the word they, I was confused. [00:03:36] Speaker 05: I apologize, I apologize. [00:03:37] Speaker 05: The district court [00:03:39] Speaker 05: in their findings said, I have reviewed it, and I agree with the recommendation, and then went on to change the sentence. [00:03:45] Speaker 05: They exercised their own independent judgment. [00:03:48] Speaker 05: The magistrate judge had recommended a sentence of four months, and the district judge imposed a sentence of nine months. [00:03:55] Speaker 05: The magistrate judge imposed or recommended no conditions of release. [00:04:00] Speaker 02: Oh, I'm confused. [00:04:01] Speaker 02: Are you saying that the district judge considered the very issue that was waived [00:04:07] Speaker 05: That's what they said, yes. [00:04:10] Speaker 05: They said, I've considered it. [00:04:12] Speaker 02: Considered it. [00:04:13] Speaker 02: What was it? [00:04:16] Speaker 05: I'm trying to find the exact quote. [00:04:18] Speaker 05: Considered the issues raised before the magistrate judge regarding. [00:04:23] Speaker 03: Which, as relevant here, I assume is your delay claim. [00:04:28] Speaker 03: I'm sorry? [00:04:29] Speaker 03: Your delay claim, right? [00:04:30] Speaker 03: Your unconstitutional delay claim. [00:04:32] Speaker 05: Well, I don't know if it's delay or it's just a failure to raise. [00:04:35] Speaker 05: I wouldn't even call it a delay. [00:04:36] Speaker 05: I would call it a failure to raise and to advise the defendant that he was looking at a revocation here. [00:04:43] Speaker 03: I mean, that's what Rule 32.1, the main argument you press on appeal [00:04:49] Speaker 03: is that there was an unconstitutional delay in the execution of the D.C. [00:04:59] Speaker 03: detainer or warrant. [00:05:00] Speaker 05: Well, I claim more than that. [00:05:02] Speaker 03: That's the argument that you never presented to the district court. [00:05:08] Speaker 05: I believe it was presented in the motion that the delay to notify the defendant of the pending warrant and the pending revocation proceedings in DC is exactly the basis under which both the pro se motion and then the motion from the trial counsel [00:05:32] Speaker 05: urge for the dismissal of the case, saying this is a 32-1 violation, it's a due process violation, it's the same thing, because the defendant was not advised of the D.C. [00:05:42] Speaker 05: proceedings and therefore did not have an opportunity to seek to have the case transferred from D.C. [00:05:49] Speaker 02: to New York. [00:05:50] Speaker 02: If there is no constitutional significance concerning the warrant in the District of Columbia until the moment it's exercised, [00:06:00] Speaker 02: Then you lose, right? [00:06:03] Speaker 05: I would say certainly the magistrate judge ruled in accordance with Moody that it has no significance until it's exercised. [00:06:12] Speaker 05: But rule 32.1 imposes a burden or a duty upon the jurisdiction in which the defendant is taken into custody to advise him of this right and then to conduct a preliminary hearing. [00:06:25] Speaker 05: And none of that was done, consequently. [00:06:28] Speaker 02: Before a warrant is executed, before a detainer is executed? [00:06:33] Speaker 02: I would say yes. [00:06:35] Speaker 02: But if that's not true, then you lose, right? [00:06:38] Speaker 05: If the rights are only required to be, if the defendant is only required to be advised of the DC charges or the pending reputation. [00:06:52] Speaker 05: I'm sorry? [00:06:52] Speaker 02: When the warrant is executed. [00:06:54] Speaker 02: But I don't think that... If that's true, is there anything to your case? [00:06:58] Speaker 05: Then we would lose that portion. [00:07:00] Speaker 02: What portion would you win? [00:07:03] Speaker 05: Maybe the ineffective assistance for failing to pursue that. [00:07:07] Speaker 05: But I think the critical thing here, Judge, is that Rule 32.1 does not talk in terms of execution of the warrant from a foreign jurisdiction or another jurisdiction. [00:07:19] Speaker 05: The triggering requirement there is taking the defendant into custody. [00:07:23] Speaker 05: And that is what happened here. [00:07:24] Speaker 05: He was taken into custody simultaneously because he had violated conditions of release under both cases. [00:07:33] Speaker 05: And that triggered the requirement that he be notified and that he have a preliminary hearing. [00:07:39] Speaker 05: It's written in 32.1 that those rights occur. [00:07:45] Speaker 04: Which language of 32.1 is you're stressing? [00:07:59] Speaker 04: I mean, I see held in custody. [00:08:01] Speaker 05: Well, it says, OK, A, initial appearance, subpart B. If the person is held in custody in the district other than where an alleged violation occurred, the initial appearance must be in that district. [00:08:11] Speaker 05: Now, there were violations here in both jurisdictions because, well, the violations occurred in New York, but it applied to both sets of conditions of release. [00:08:22] Speaker 05: Also, in section three, [00:08:24] Speaker 05: The judge must inform the person of the following, the alleged violation of probation or supervised release, and in Section 5, appearance in a district lacking jurisdiction. [00:08:36] Speaker 05: If the person is arrested or appears in a district that does not have jurisdiction to conduct a revocation hearing, the magistrate judge must, then A, if a violation occurs in the district of arrest, conduct a preliminary hearing. [00:08:48] Speaker 05: Those are all the safeguards in 32.1 [00:08:52] Speaker 05: that were designed to prevent what happened in this case from occurring. [00:08:56] Speaker 03: But they're all triggered by the requirement that the person be held in custody. [00:09:04] Speaker 03: And he was held in custody. [00:09:05] Speaker 03: But that just takes us right back to the moody question of whether, when the SDNY probation office brought him in, whether they were doing so [00:09:18] Speaker 03: for purposes of the SDNY violation, as the government says, or whether, on your theory, they were also enforcing the DDC warrant. [00:09:31] Speaker 03: It just takes us back to the same question. [00:09:33] Speaker 03: It doesn't see how it gets you any more than booty. [00:09:36] Speaker 05: But it answers the question because he was taken into custody for violation of conditions on both cases. [00:09:42] Speaker 05: And the probation officer who took him into custody [00:09:47] Speaker 05: Notified D.C. [00:09:49] Speaker 05: D.C. [00:09:49] Speaker 05: probation filed a report with Judge Moss and Judge Moss issued a warrant. [00:09:58] Speaker 03: He's taken into custody, if I have the chronology right, on January 18. [00:10:05] Speaker 03: The DDC warrant doesn't even issue until February 1st. [00:10:09] Speaker 05: I think it was January 31st, and actually I believe he was taken into custody on the 17th. [00:10:13] Speaker 03: 17th or 18th, in any event, well before the DDC warrant even issues. [00:10:19] Speaker 05: Right, but it's clear it's based on violating both because the New York probation officer contacts D.C. [00:10:26] Speaker 05: and says he's in violation. [00:10:28] Speaker 05: So he's in violation. [00:10:30] Speaker 05: The New York probation violation, he's violated both sets of conditions of release, and brings him in to address the New York one year, notifies DC. [00:10:40] Speaker 05: Now, DC issues a warrant, but then places it under seal, so the defendant has no notice of it. [00:10:46] Speaker 05: And therefore, he's denied the right to pursue a transfer from DC to New York, something that the Judicial Conference has encouraged. [00:10:55] Speaker 03: How do we know that Judge Moss would have agreed [00:10:58] Speaker 03: that he's violating the DC conditions. [00:11:02] Speaker 05: Well, whether the judge would ultimately rule that way or not just delays the question of whether or not the defendant had the right to address the issue. [00:11:14] Speaker 05: Judge Moss was denied the right... We don't know how Judge Moss would have exercised his discretion because he wasn't given a chance to exercise his discretion. [00:11:21] Speaker 05: We know he issued a warrant based on the allegations in the report. [00:11:26] Speaker 02: Well, he sure behaved as if he did not agree with Judge Kimberwood, didn't he? [00:11:32] Speaker 05: Ultimately, yes. [00:11:34] Speaker 05: However, we don't know what he would have decided had he been apprised of this earlier. [00:11:40] Speaker 04: I mean, by the time it got... He simply emphasizes things which point in an unfavorable direction. [00:11:47] Speaker 04: Well, this was a separate matter and there was a separate criminal proceeding here. [00:11:51] Speaker 04: This is a violation of the terms with respect to that separate criminal proceeding that does not show hospitality towards your theory. [00:12:01] Speaker 05: But it's a question of when this is presented to him. [00:12:03] Speaker 05: And that was in response to a request post serving the New York sentence, post serving that, I think, nine months ago. [00:12:11] Speaker 05: It was a 24-month sentence. [00:12:12] Speaker 05: I forget how much time he actually did. [00:12:14] Speaker 05: But after all that was done, when the case was transferred to DC, that was the position he took. [00:12:20] Speaker 05: Had he been apprised of this earlier, had the opportunity to transfer the case to New York, we don't know. [00:12:28] Speaker 05: And I expect if he followed the recommendation of the judicial conference, that favors transferring. [00:12:34] Speaker 03: All of the... But they're separate cases. [00:12:38] Speaker 03: Absolutely separate cases. [00:12:39] Speaker 03: And as far as I can tell, [00:12:42] Speaker 03: the DDC charges are much more serious ones, right? [00:12:46] Speaker 03: And they led to a two-year sentence, and the SDNY ones led to a one-day sentence. [00:12:52] Speaker 05: Well, but on revocation, they got the same two-year sentence in New York. [00:12:56] Speaker 05: Judge Wood's imposed the two-year, the exact same sentence. [00:12:59] Speaker 03: On revocation? [00:13:00] Speaker 05: On revocation, yes. [00:13:02] Speaker 05: She apparently was prepared to give them a chance to pursue mental health counseling, and that failed. [00:13:07] Speaker 05: She maxed them out. [00:13:09] Speaker 03: Why would it have mattered, why would the timing issue [00:13:12] Speaker 03: Why could it have mattered to Judge Moss? [00:13:15] Speaker 03: And his theory is, this is my case. [00:13:18] Speaker 03: I want to deal with it. [00:13:19] Speaker 03: That would have been just as true had the motion been made four months earlier. [00:13:24] Speaker 05: Had the motion been made earlier, had he followed the recommendation of the judicial conference that under circumstances like this, [00:13:31] Speaker 05: in the interest of conserving judicial resources, conserving time, all of the witnesses, all of the allegations in New York, the violations in New York, it made perfect sense to exercise his discretion and say, let's send this to New York to deal with both cases since they already have it and it would conserve a lot of resources. [00:13:49] Speaker 05: By the time it came to him here, [00:13:51] Speaker 05: That sentence had already been served. [00:13:53] Speaker 05: There was no interest in judicial economy. [00:13:56] Speaker 05: It was quite the opposite. [00:13:57] Speaker 05: To send it back to New York would have made no sense. [00:14:00] Speaker 05: And so I don't fault one iota, his decision to say, once New York is done and he's here, I'm going to deal with it here because everybody's here. [00:14:10] Speaker 05: But had the request been made to transfer it to New York timely, [00:14:18] Speaker 05: there's a reasonable probability he would have followed that. [00:14:20] Speaker 05: And certainly Judge Woods was under the impression she had jurisdiction over both cases initially, because she imposed the concurrent sentence. [00:14:26] Speaker 05: And then when informed she didn't by the prosecution, she said, OK, well, that'll be my recommendation. [00:14:33] Speaker 05: Did that answer the question? [00:14:38] Speaker 03: I noticed my time is up. [00:14:39] Speaker 03: We'll give you some rebuttal. [00:14:41] Speaker ?: Thank you. [00:14:54] Speaker 00: Good morning. [00:14:55] Speaker 00: Good morning. [00:14:56] Speaker 00: May it please the court. [00:14:57] Speaker 00: Peter Smith on behalf of the United States. [00:15:00] Speaker 00: The court should affirm the judgment of the district court. [00:15:04] Speaker 00: Unless the court has other questions, I'm going to focus on the argument that appellant made this morning about Rule 32. [00:15:10] Speaker 00: Appellant's argument is that the minute appellant was taken into custody, his rights under Rule 32 attached. [00:15:17] Speaker 00: And that's simply refuted by the case law. [00:15:20] Speaker 00: Appellant hasn't cited any case that says, [00:15:23] Speaker 00: that his rights under Rule 32 attached when he was taken into custody in another case before another judge involving different charges, the charges in the District of Columbia. [00:15:35] Speaker 03: Which just brings us back to this question of, in this seemingly unusual circumstance, whether we should understand the SDNY probation officers having brought him in on one set of charges or both. [00:15:51] Speaker 03: Right? [00:15:53] Speaker 03: And so why would it be unreasonable? [00:15:55] Speaker 03: I mean, there was this arrangement under which the SDNY probation office seemed to be doing the job of the DDC probation office. [00:16:10] Speaker 03: And it makes perfect sense, right? [00:16:12] Speaker 03: He's in New York. [00:16:13] Speaker 03: The charges are similar. [00:16:15] Speaker 03: So there's this established pattern in the case that [00:16:20] Speaker 03: The SDNY office is wearing two hats. [00:16:23] Speaker 03: They're wearing their SDNY hat and their DDC hat, and the conditions are the same. [00:16:28] Speaker 03: They're monitored jointly. [00:16:30] Speaker 03: And then he violates the conditions, and they bring him in. [00:16:34] Speaker 03: Why wouldn't we presume that they're still wearing both hats at that point? [00:16:38] Speaker 00: Well, initially, Your Honor, they're [00:16:41] Speaker 03: Conditions aren't exactly the same, but I believe... Similar enough for the SDNY probation office to be administering the DDC supervised release. [00:16:51] Speaker 00: They're similar, but I guess my response is that the argument that you're suggesting that appellant is making is a pragmatic one about the overlap of supervision, but the legal argument [00:17:05] Speaker 00: forecloses appellant's position. [00:17:08] Speaker 00: There simply isn't any case that he can point to that says that this sort of overlapping supervision means that somebody is in custody, either under Moody for constitutional purposes or for purposes of Rule 32. [00:17:21] Speaker 00: On the other hand, at page 21 of the government's brief, the government has cited at least two cases, Pardue and Shipp, that say that in this situation, you don't simply [00:17:34] Speaker 00: either draw a pragmatic conclusion or a sort of fiction that somebody is in custody in two different cases, that courts don't do that. [00:17:42] Speaker 03: Suppose the SDNY office took him in and said explicitly in their filings or statements or whatever, we are taking you in for violation of both sets of conditions. [00:17:59] Speaker 00: I still don't think that you would have the kind of overlap that [00:18:03] Speaker 00: you're suggesting or that appellant would need to prevail in this case. [00:18:07] Speaker 00: If the probation office brought appellant in and said you are now under custody under both cases and they actually executed the DC warrant, I would agree with you. [00:18:22] Speaker 00: Moody says it's the execution of the warrant that matters. [00:18:25] Speaker 00: That happened here in August of 2017. [00:18:28] Speaker 00: Appellant's argument is that in January of 2017 when he was in custody in New York, [00:18:32] Speaker 02: that he was... Well, you don't mean to say if he was arrested in New York without regard to the New York involvement, but rather DC, and there was no warrant that the constitutional rights wouldn't ensue at that point? [00:18:49] Speaker 02: Maybe I missed understanding your question. [00:18:51] Speaker 02: I was in a strange situation. [00:18:54] Speaker 02: Suppose he had been arrested in New York for violation of the DC. [00:18:59] Speaker 00: Right. [00:19:00] Speaker 00: They would attach. [00:19:00] Speaker 02: They would certainly attach at that point. [00:19:02] Speaker 00: Right. [00:19:03] Speaker 02: Assuming that the warrant had been executed, then he would be in custody even though he's in... But your basic point is the key in the cases is the constitutional and Section 32 rights spring up the moment the detainer warrant is executed. [00:19:21] Speaker 02: Correct. [00:19:22] Speaker 02: And not before that time. [00:19:23] Speaker 00: Correct. [00:19:24] Speaker 00: And we cited Moody and we cited [00:19:26] Speaker 00: Other cases on page 21 of our brief, an appellant hasn't cited any case that's to the contrary. [00:19:32] Speaker 00: The court has no further questions. [00:19:34] Speaker 00: We would urge the court to affirm the judgment of the district court. [00:19:37] Speaker 04: What about, as a practical matter, the probability that Judge Moss would have reacted differently if the transfer of venue motion had been made? [00:19:53] Speaker 00: If it had been made earlier? [00:19:55] Speaker 00: The way that the case is postured now, either on plain error or ineffective assistance, it's appellant's burden to show that that kind of prejudice. [00:20:03] Speaker 00: The transfer statute is discretionary. [00:20:06] Speaker 00: I think as you're suggesting, Judge Moss wouldn't have had to transfer the case. [00:20:12] Speaker 00: And there's an indication in the record that he wouldn't have. [00:20:15] Speaker 00: The case involved different charges. [00:20:17] Speaker 04: It was a different case, a different case. [00:20:19] Speaker 04: temporal circumstance quite clearly, and the advantage of the economy of judicial effort might have persuaded him. [00:20:27] Speaker 00: I think not because the cases were different. [00:20:30] Speaker 00: They involved different charges. [00:20:32] Speaker 00: Later, when Judge Moss received the case, he did not go with the magistrate judge's recommended sentence. [00:20:42] Speaker 00: Judge Moss also had the option to impose concurrent sentences and chose not to. [00:20:47] Speaker 00: That provides some evidence that he wouldn't have transferred it. [00:20:51] Speaker 00: Some evidence. [00:20:52] Speaker 00: Some evidence. [00:20:53] Speaker 00: But it's appellant's burden, either under plain error or under ineffective assistance of counsel under Strickland. [00:21:01] Speaker 00: He's got to show prejudice. [00:21:02] Speaker 00: And on this record, he can. [00:21:04] Speaker 03: You say under one or the other. [00:21:07] Speaker 03: What standard should we apply for forfeited errors in this context? [00:21:13] Speaker 00: We made an argument that his claim is completely foreclosed because it was way because he didn't object to the magistrate judge's report. [00:21:23] Speaker 00: But if the court weren't going to do that, then review, as I indicated just now, would be either under the plain error [00:21:30] Speaker 00: or under description. [00:21:32] Speaker 03: So it's either no review, it's a plain error review, or ineffective assistance review. [00:21:36] Speaker 03: Or ineffective assistance. [00:21:38] Speaker 00: Do you want to help us pay? [00:21:39] Speaker 00: And this court has said that ineffective assistance and the plain error are very similar. [00:21:43] Speaker 00: I think the court has said they functioned almost the same. [00:21:48] Speaker 00: So under any of those standards, we would win. [00:21:51] Speaker 00: Obviously, it's better for the government if the claim are wholly waived, and the court didn't even consider it. [00:21:57] Speaker 03: But isn't plain error [00:22:00] Speaker 03: the more analogous standard to the extent we're talking about a claim that wasn't preserved in district court that sought to be raised on direct review? [00:22:12] Speaker 00: Yes. [00:22:13] Speaker 03: Ineffective assistance usually kicks in in the collateral review context. [00:22:19] Speaker 00: It does. [00:22:19] Speaker 00: Appellants raised it in his direct appeal of the revocation of supervised release. [00:22:26] Speaker 00: So our argument is that [00:22:29] Speaker 00: the record conclusively shows that he didn't receive ineffective assistance from counsel, and he wasn't prejudiced. [00:22:34] Speaker 00: So whether it's plain error or ineffective assistance, at bottom it's the same. [00:22:40] Speaker 00: The result is the same in any event. [00:22:42] Speaker 00: And the legal argument obtained, unless the courts were foreclosed from review, because appellant didn't object to the magistrate judge's report, but under any other standard, [00:22:55] Speaker 00: case authority, the legal argument that I made would foreclose his claim. [00:22:59] Speaker 00: Right. [00:23:00] Speaker 03: Understood. [00:23:02] Speaker 00: Thank you. [00:23:03] Speaker 00: Thank you very much. [00:23:08] Speaker 05: Thank you. [00:23:09] Speaker 05: I guess the principal point I want to start off with is that this case is distinguishable from Moody, because Moody, it occurred in 1972. [00:23:16] Speaker 05: It was a parole case, not a supervised release case. [00:23:19] Speaker 05: Supervised release didn't even exist when Moody occurred. [00:23:22] Speaker 05: Additionally, the warrant should be- Why does that matter? [00:23:25] Speaker 05: Huh? [00:23:25] Speaker 03: Why does that matter? [00:23:26] Speaker 05: Because, and that goes to my next point. [00:23:30] Speaker 05: Custody is the triggering, is the operative word used within 32.1, when someone is taken to custody. [00:23:37] Speaker 05: It doesn't require the execution of a warrant. [00:23:39] Speaker 05: Now, normally that is the way someone's taken into custody. [00:23:42] Speaker 05: However, since supervised release has occurred, and since Moody has occurred, probation officers now have the authority to take someone into custody absent the warrant if there is a violation. [00:23:53] Speaker 05: And that seems to be what occurred in this case. [00:23:56] Speaker 05: Amir Islam came into the probation officer's office, made admissions that he violated conditions of release, was taken into custody. [00:24:05] Speaker 05: The admissions he made, as the probation officer found, were violative of both sets of conditions of release. [00:24:12] Speaker 05: And at that point, I suggest the proper analysis is he's in custody in both sets, on both court's orders, on both cases. [00:24:23] Speaker 03: It seems like that's not so much an argument about legal differences between supervised release and parole. [00:24:31] Speaker 03: It's just an argument about how we understand the facts in this odd situation where the SDNY probation office is doing some of the functions that would otherwise be done by the DDC probation office. [00:24:48] Speaker 03: And it's admittedly murky, but you have essentially a finding of fact by the magistrate judge that the DDC [00:24:58] Speaker 03: custody didn't kick in until after the SDNY custody ran its course. [00:25:05] Speaker 03: It's a little hard for you to show that that's clearly erroneous. [00:25:09] Speaker 05: Well, it's erroneous because based on that, they apparently said that the protections rule 32.1 don't apply because he's not in custody because the warrant hasn't been executed. [00:25:19] Speaker 05: But 32.1 speaks in terms of custody, not the execution of a warrant. [00:25:24] Speaker 05: And in this case, he was taken into custody without a warrant. [00:25:27] Speaker 02: The problem is this is a rather confusing case. [00:25:29] Speaker 02: You admit that. [00:25:31] Speaker 02: How the devil could you ever establish that it's clearly erroneous on the part of the district judge? [00:25:36] Speaker 05: Well, the clearly erroneous part here [00:25:39] Speaker 05: Which clearly erroneous part? [00:25:41] Speaker 02: Any part. [00:25:42] Speaker 05: Okay. [00:25:42] Speaker 05: I would say that the clearest part, and I didn't focus on Judge Morse's decision, and frankly I'm not critical, because at that point his decision was logical. [00:25:53] Speaker 02: Who committed clearly erroneous acts then? [00:25:55] Speaker 05: the probation officer for failing to notify, and the magistrate judge in New York, when they failed to notify the defendant of the pending DC violations, and that he was at jeopardy in DC for these revocations. [00:26:10] Speaker 05: He did not know of that until they were ready to, until they prepared to release him. [00:26:15] Speaker 02: I want to focus on the legal question. [00:26:17] Speaker 02: Your point is, that is the strongest argument you have, is that the probation office in New York [00:26:23] Speaker 02: They behaved in a clearly erroneous fashion? [00:26:28] Speaker 05: Well, clearly erroneous is a legal standard applicable to the judge. [00:26:31] Speaker 05: The violation here, and I'm not exactly sure who you would say was so much a fault. [00:26:36] Speaker 01: You're not sure who violated what? [00:26:38] Speaker 01: Are you sure? [00:26:40] Speaker 01: Who violated what? [00:26:42] Speaker 05: OK. [00:26:44] Speaker 05: The violation occurred because the defendant was advised... Not because. [00:26:47] Speaker 01: Who violated? [00:26:48] Speaker 05: Well, it could be a combination of the trial of the magistrate judge who failed to advise him, who may not have even been aware of it, or the probation officer that failed to advise the defendant and failed to advise the magistrate judge that there are these pending proceedings. [00:27:03] Speaker 03: I mean, this defendant was prejudiced because he was not able... But that's a violation. [00:27:08] Speaker 03: only if he was taken into custody on both sets of charges. [00:27:22] Speaker 03: And the magistrate judge said, as a factual matter, that that was not the case. [00:27:29] Speaker 03: Which magistrate judge? [00:27:30] Speaker 03: The magistrate judge in DC. [00:27:32] Speaker 03: In DC. [00:27:32] Speaker 03: Yes. [00:27:32] Speaker 03: Subsequently, the magistrate judge. [00:27:34] Speaker 03: Whose report is under review here. [00:27:36] Speaker 05: After, at that point. [00:27:38] Speaker 03: So at a minimum, forfeitures aside, you would have to establish that that finding of fact is clearly erroneous. [00:27:47] Speaker 05: That one is erroneous because it relies on Moody, which should be an applicable in this case, because the standard is not execution of a warrant. [00:27:52] Speaker 05: The standard is custody. [00:27:54] Speaker 05: Additionally, I would point to the fact that the judge in New York believed she had jurisdiction over both cases because they were supervising the air. [00:28:01] Speaker 05: And that's why she said, I'm going to impose a concurrent sentence. [00:28:05] Speaker 05: She was then technically corrected. [00:28:08] Speaker 05: But her clear impression at that point, when she imposed a concurrent sentence was that the technical correction was not correct. [00:28:15] Speaker 05: Well, it was correct. [00:28:16] Speaker 05: She didn't have jurisdiction because it hadn't been transferred. [00:28:18] Speaker 05: Right. [00:28:20] Speaker 05: No, it had not been transferred. [00:28:21] Speaker 05: And the reason, I suggest to you, the reasonable probability is it had not been transferred because the defendant was not afforded the constitutional protections encompassed in 32.1. [00:28:33] Speaker 05: Had they been, his lawyer, and subsequently he, when he learned of the DC charges, filed a motion to transfer, and that's [00:28:44] Speaker 05: The reasonable probability is that would have been granted had it been filed earlier. [00:28:50] Speaker 05: Nothing else? [00:28:51] Speaker 03: Mr. Zucker, thank you. [00:28:53] Speaker 03: You were appointed by the court to represent Mr. Islam in this appeal. [00:28:58] Speaker 03: Court thanks you for your assistance. [00:29:00] Speaker 03: Thank you very much.