[00:00:01] Speaker 00:
Case number 15-3077, United States of America versus Rodrigo Tovar Pupo, also known as Jorge 40, also known as Para Tovar Columbia Appellant.

[00:00:13] Speaker 00:
Ms.

[00:00:13] Speaker 00:
Davis for the appellant, Mr. Romano for the appellee.

[00:00:18] Speaker 01:
Ms.

[00:00:18] Speaker 01:
Davis, good morning.

[00:00:19] Speaker 01:
Before you start, let me just make sure the record reflects that Judge Randolph will be considering this case on the tape.

[00:00:28] Speaker ?:
Go ahead.

[00:00:28] Speaker 02:
Good morning, Your Honors.

[00:00:29] Speaker 02:
Mary Davis on behalf of Mr. Tovar Pupo.

[00:00:32] Speaker 02:
With the Court's permission, I'd like to say three minutes for a rebuttal.

[00:00:36] Speaker 02:
The issue I'd like to address this morning is that the District Court abused its discretion when it denied Appellant's motion to withdraw the guilty plea.

[00:00:46] Speaker 02:
As this Court is aware, Mr. Tovar Pupo sought to withdraw the guilty plea prior to sentencing.

[00:00:52] Speaker 02:
Therefore,

[00:00:54] Speaker 02:
According to the rules, such motions are to be liberally granted and permitted for any fair and just reason.

[00:01:00] Speaker 02:
In this case, the district court focused primarily on the Rule 11 colloquy, and while at the same time basically ignoring a lot of what happened and what the witnesses testified to during the evidentiary hearing on the motion to withdraw the plea.

[00:01:19] Speaker 03:
As far as the legal standard goes, though,

[00:01:23] Speaker 03:
If there is no violation of Rule 11, then isn't that, I guess, make it a higher burden for you under our case law for even a pre-sentencing motion to withdraw?

[00:01:41] Speaker 02:
But I think on the facts of this case, the fact that there was what appeared to be a straightforward Rule 11 colloquy,

[00:01:50] Speaker 02:
There were certain instances within that colloquy where the defendant made certain conditions, I would say, to his answers.

[00:02:00] Speaker 02:
He would say, yes, the drugs were imported, but that was a result of my raising taxes.

[00:02:11] Speaker 02:
And Mr. Tovar Pupo consistently throughout the case maintained that his role

[00:02:17] Speaker 02:
in this political agenda of his.

[00:02:19] Speaker 02:
His role was to oversee people, to collect the taxes.

[00:02:24] Speaker 02:
He did not gain wealth from the taxes.

[00:02:26] Speaker 02:
The taxes were used for his political cause.

[00:02:30] Speaker 02:
He did not supervise anyone.

[00:02:32] Speaker 03:
But I guess what I'm trying to get at is, are you arguing this morning that there was a Rule 11 violation?

[00:02:42] Speaker 02:
I believe that

[00:02:44] Speaker 02:
there was a rule 11 violation although below it was conceded that there was no rule 11 violation so I think what this court can do is to look at the factors I was just mentioning regarding what happened during the colloquy and look at the testimony because I believe you can't have as long as there is a rule 11 colloquy that doesn't have any blatant mistakes I don't think that that

[00:03:08] Speaker 02:
I think that would kind of get rid of the whole purpose of the rule saying that there should be, that these motions should be liberally granted.

[00:03:15] Speaker 02:
Almost never is there a problem with the rule of 11 colloquy because judges go straight forward, you know, through everything, through all the questions, through all the conditions of the plea, there's very, very seldom is there any problem with the rule of 11 colloquy.

[00:03:31] Speaker 02:
So in order to enforce what the rule is saying regarding liberally

[00:03:37] Speaker 02:
granting these motions, I think the court has to look beyond just the Rule 11 colloquy.

[00:03:42] Speaker 02:
Otherwise, there would be basically no purpose in having an evidentiary hearing if the testimony at the evidentiary hearing is not going to be considered along with the Rule 11 colloquy.

[00:03:54] Speaker 03:
But I guess what I'd like to hone in on here is what do you believe was the

[00:04:03] Speaker 03:
If we were to assume that we can consider the argument that there was a violation of Rule 11, what was the violation?

[00:04:17] Speaker 02:
Again, I don't think there's an actual violation of Rule 11.

[00:04:21] Speaker 02:
I think the judge did

[00:04:25] Speaker 02:
everything the judge was supposed to do in regard to going through everything.

[00:04:31] Speaker 02:
I think the problem again is that Mr. Torapupo was not clear in his answers to the judge.

[00:04:39] Speaker 02:
Again, he was premising his answers, his agreement.

[00:04:44] Speaker 02:
He agreed with what the judge was saying, but his agreement was premised on his

[00:04:50] Speaker 02:
saying that that was all part of, you know, collecting taxes.

[00:04:53] Speaker 02:
That's what I did.

[00:04:54] Speaker 02:
And that also leads to the argument that

[00:04:59] Speaker 02:
we believe that Mr. Tovar Pupo had a viable claim of innocence because he never really agreed that he had any involvement in the drug trafficking.

[00:05:13] Speaker 02:
He basically said he collected taxes and the taxes came from both legitimate and illegitimate sources.

[00:05:20] Speaker 02:
So Mr. Tovar Pupo, he didn't tell anyone what to do other than collect the taxes.

[00:05:26] Speaker 02:
He, there's no evidence he ever saw any drugs.

[00:05:29] Speaker 02:
There's no evidence he, in fact, the plea agreement.

[00:05:35] Speaker 03:
Well, he admitted that he was aware.

[00:05:37] Speaker 03:
He was aware, that's right, he was aware.

[00:05:39] Speaker 03:
He was certainly aware.

[00:05:41] Speaker 02:
Yes.

[00:05:41] Speaker 03:
Of how the drug trafficking worked.

[00:05:43] Speaker 03:
Right.

[00:05:44] Speaker 03:
And that he was aware that this was facilitating it, right?

[00:05:48] Speaker 02:
Exactly.

[00:05:50] Speaker 02:
But I don't think that shows that he had the specific intent for the drugs to be imported into the United States.

[00:05:59] Speaker 02:
In fact, the Statement of Facts says in summary, defendants' activities leading the organization, the defendant came to learn about the drug trafficking activities.

[00:06:10] Speaker 02:
I mean, so even the Statement of Facts doesn't clearly say that he was actively involved in the conspiracy,

[00:06:18] Speaker 02:
resulted in drugs being exported to the United States.

[00:06:24] Speaker 03:
If we believe that we have to find that there was actual ineffective assistance of counsel in order to find taint, in order to find that there was an abuse of discretion, where was the ineffective assistance of counsel?

[00:06:47] Speaker 02:
As the district court found, there was actual conflict.

[00:06:50] Speaker 02:
So therefore, prejudice is presumed.

[00:06:53] Speaker 02:
And so then the court had to consider whether counsel's conflict adversely affected the lawyer's performance.

[00:07:02] Speaker 02:
And I think in this case, it did because, number one, Mr. Perez was not going to take Mr. Tovar Pupo to trial.

[00:07:15] Speaker 02:
He also had two other clients that he said were willing to come in and testify against Mr. Tovar Pupo.

[00:07:23] Speaker 03:
What about the role of Ms.

[00:07:24] Speaker 03:
Shaner, though?

[00:07:25] Speaker 03:
Wouldn't she be available to take the case to trial if Mr. Pupo had decided that that's what he wanted to do?

[00:07:35] Speaker 02:
I think there was some discussion concerning that.

[00:07:38] Speaker 02:
I don't know if there was any final agreement.

[00:07:41] Speaker 02:
Even Ms.

[00:07:42] Speaker 02:
Shaner's testimony during the evidentiary hearing

[00:07:45] Speaker 02:
made clear that she believed that Mr. Tovar Pupo did not want to plead guilty.

[00:07:53] Speaker 02:
And that is something that he maintained from the beginning.

[00:07:57] Speaker 03:
And all the way through, but I guess what I want to zero in on.

[00:08:03] Speaker 03:
Is I don't know that judge Walton made a finding of this.

[00:08:06] Speaker 03:
I don't recall seeing it in the record.

[00:08:09] Speaker 03:
But.

[00:08:12] Speaker 03:
Whereas Mr Perez apparently was clear that he would not take the case to trial.

[00:08:19] Speaker 03:
and that was kind of understood as part of his retention.

[00:08:24] Speaker 03:
I don't believe that there was any similar limitation on the retention of Ms.

[00:08:30] Speaker 03:
Shana, right?

[00:08:31] Speaker 02:
I don't believe there was.

[00:08:33] Speaker 02:
I believe there was discussion concerning it.

[00:08:36] Speaker 02:
But my understanding is that Ms.

[00:08:37] Speaker 02:
Shana was appointed in the beginning and then was basically serving as local counsel.

[00:08:44] Speaker 02:
I don't know if Ms.

[00:08:45] Speaker 02:
Shana

[00:08:47] Speaker 02:
I don't recall, I don't know if Ms.

[00:08:49] Speaker 02:
Schaener said she would be prepared to take the case to trial.

[00:08:53] Speaker 02:
I don't know if that's true.

[00:08:55] Speaker 02:
And I think we also have to keep in mind is that Mr. Tovar Pupo wanted retained counsel, but he wanted his retained counsel to take him to trial.

[00:09:07] Speaker 02:
If that makes any sense.

[00:09:09] Speaker 02:
I think, and that would be, so I don't think that there's enough in this record

[00:09:15] Speaker 02:
for this court to say that Ms.

[00:09:18] Speaker 02:
Schaener would have been ready and able to try the case.

[00:09:22] Speaker 02:
I just don't think those facts are in the record.

[00:09:25] Speaker 02:
And if there's no further questions, I will save my one minute for your panel.

[00:09:30] Speaker 02:
All right.

[00:09:31] Speaker 02:
Thank you.

[00:09:41] Speaker 04:
Good morning, and may it please the Court, John Alex Romano on behalf of the United States.

[00:09:46] Speaker 04:
The District Court's denial of Mr. Tovar Pupo's motion to withdraw his guilty plea was not an abuse of discretion, and we ask that the Court affirm that ruling.

[00:09:54] Speaker 04:
Each relevant factor cut against withdrawal of a guilty plea.

[00:09:58] Speaker 04:
First, his guilty plea was not tainted.

[00:10:01] Speaker 04:
As my opponent conceded,

[00:10:05] Speaker 04:
In the district court, Mr. Tovar Pupo, in seeking to withdraw his guilty plea, did not allege a Rule 11 violation.

[00:10:11] Speaker 04:
Rather, his theory of taint was that his attorney, Joaquin Perez, one of his attorneys, had an actual conflict of interest based on Mr. Perez's concurrent representation of two cooperating defendants.

[00:10:22] Speaker 04:
But even if Mr. Perez did have an actual conflict of interest... Are you actually contesting that there was a... No.

[00:10:29] Speaker 04:
For purposes of appeal, Your Honor, we are not disputing that there was an actual conflict of interest.

[00:10:33] Speaker 04:
What we are arguing, though, is that that conflict of interest did not adversely affect Mr. Perez's performance, his representation of Mr. Tovar Pupo in connection with the guilty plea.

[00:10:45] Speaker 04:
And the court can begin by looking first at Mr. Tovar Pupo's sworn statements during the plea colloquy.

[00:10:51] Speaker 03:
Are we supposed to look only at whether it was ineffective assistance of counsel with respect to the negotiation of the guilty plea or can we look at whether there was ineffective assistance of counsel more broadly speaking as with respect to whether there was sufficient

[00:11:21] Speaker 03:
preparation of the defense in general?

[00:11:25] Speaker 04:
Your Honor, I don't believe the court can look at that because that's certainly not an argument that has been raised.

[00:11:31] Speaker 04:
I don't believe it was raised in the district court or on appeal.

[00:11:33] Speaker 04:
That is that Tovar Pupo's defense team did not adequately prepare the case for trial.

[00:11:40] Speaker 04:
The claim that Tovar Pupo made as to how the conflict of interest affected

[00:11:47] Speaker 04:
Perez's representation was that Perez didn't want to go to trial and that he effectively coerced Mr. Tovar Pupo into pleading guilty.

[00:11:55] Speaker 04:
That was the allegation.

[00:11:57] Speaker 04:
So I think the court is limited in looking at what the actual arguments were that were raised.

[00:12:03] Speaker 04:
And the district court did consider that argument, in fact, and it rejected it.

[00:12:08] Speaker 04:
And that appears in footnote 11 of the district court's decision.

[00:12:11] Speaker 04:
And there was ample record evidence

[00:12:13] Speaker 04:
supporting the district court's rejection of this claim that Mr. Tovar Pupo's guilty plea was coerced.

[00:12:20] Speaker 04:
The court can look at the Rule 11 statements that Mr. Tovar Pupo made under oath, where, for example, he confirms that no one threatened, pressured, or coerced him into pleading guilty, and he confirmed that it was in his best interest to plead guilty.

[00:12:33] Speaker 04:
The court can look at evidence that was developed at the hearing on the motion to withdraw the guilty plea, including the testimony of Conflict Free Counsel Heather Schaener.

[00:12:44] Speaker 04:
And she testified, among other things, that she reviewed the plea documents carefully with Mr. Tovar Pupo, that Mr. Tovar Pupo agreed that it was in his best interest to plead guilty.

[00:12:54] Speaker 04:
And she testified that it was her belief that his decision to plead guilty was voluntary.

[00:12:57] Speaker 04:
This is that Joint Appendix 187 to 193.

[00:13:02] Speaker 03:
But she also testified that, I mean, there was a lot of disagreement about that, and that even it took, you know, this kind of intervention with the prosecutors, ultimately, to kind of get this over the finish line, so to speak, right?

[00:13:22] Speaker 03:
I mean, there was a meeting with the prosecutors where it went over.

[00:13:27] Speaker 03:
the factual proffer?

[00:13:30] Speaker 04:
Sure, Your Honor, yes.

[00:13:31] Speaker 04:
And to be clear, she did testify that Tovar Pupo didn't want to plead guilty, but that he did come to see that it was in his best interest to plead guilty.

[00:13:39] Speaker 04:
I think many defendants don't want to ultimately plead guilty and be convicted of a crime.

[00:13:43] Speaker 04:
But the testimony, as I read the transcript by Heather Schaener, was that he agreed that it was in his best interest to plead guilty.

[00:13:50] Speaker 04:
And as to that meeting with prosecutors, no one corroborated Tovar Pupo's testimony that he was

[00:13:56] Speaker 04:
you know, the gist of Tovar Pupo's testimony was that during that meeting with prosecutors, he was browbeaten into pleading guilty, and that he said, I'll do it if everyone can agree that this is a lie.

[00:14:06] Speaker 04:
That was not corroborated, and the district court had ample grounds under the clear error standard for rejecting Tovar Pupo's claim.

[00:14:14] Speaker 04:
Among other things, the court could also look at a hearing exhibit that the government introduced.

[00:14:19] Speaker 04:
This is exhibit five, which is at Joint Appendix 365, and this is a note

[00:14:24] Speaker 04:
that Mr. Tovar Pupo writes to Attorney Perez after he has pleaded guilty.

[00:14:29] Speaker 04:
And the gist of the note is to praise Mr. Perez's skills as a negotiator, and Tovar Pupo hopes that someday Mr. Perez will consider him, Tovar Pupo, a friend.

[00:14:40] Speaker 04:
That's not the type of note that is written by a defendant who has been pressured into pleading guilty.

[00:14:46] Speaker 03:
It's not, but let me just tell you, I guess, perhaps,

[00:14:50] Speaker 03:
I'm infected by my past life as a public defender.

[00:14:59] Speaker 03:
You know, what really smells in this case is that you had a lawyer who had a clear conflict from the beginning and whose role it appears to be from the beginning was to get Mr. Coupo to plead guilty.

[00:15:18] Speaker 03:
because he could not take the case to trial, because his two other clients would have been testifying against Mr. Pupo had that occurred.

[00:15:32] Speaker 03:
So, I mean, in a normal case, if we were to hear that the defense lawyer had no interest in taking the case to trial,

[00:15:43] Speaker 03:
and saw his or her job is only to get the defendant to plead guilty.

[00:15:49] Speaker 03:
And if the defendant played guilty, but then before sentencing said, you know, all my lawyer wanted me to do from the beginning was to plead guilty.

[00:15:58] Speaker 03:
And I'd really like to take the case to trial and take my chances.

[00:16:04] Speaker 03:
Why wouldn't we say that that's a fair and just reason under Rule 11 to let the defendant withdraw his guilty plea and take his chances?

[00:16:11] Speaker 04:
Your Honor, because I think the law is that while a request to withdraw the plea that is made before sentencing can be deliberately granted for a fair and just reason, I think the law of this circuit is also clear that when a district court denies that request, the defendant has a heavy burden in getting that reversed on appeal.

[00:16:28] Speaker 04:
And among other things that the court could look at, and this is something that the district court relied on, and I believe it's in footnote 11, is some statements by Tovar Pupo himself leading up to the guilty plea, which suggested that he wasn't really intent on going to trial.

[00:16:44] Speaker 04:
There's an email, I believe, that the district court cited where Tovar Pupo was sending back corrections to the statement of facts to Perez, where he says, let's see if we can work out a compromise so that I can not have to go to trial.

[00:16:57] Speaker 04:
So I think under the clear error standard, which is what applies to the district court's finding that Mr. Tovar Pupo was not pressured against his will to plead guilty, the district court had an ample basis for concluding that this was Tovar Pupo's voluntary decision to plead guilty.

[00:17:17] Speaker 03:
We review whether there was ineffective assistance to Nova.

[00:17:25] Speaker 04:
I believe the standard is, Your Honor, the way that he would have to show ineffective assistance of counsel would be to show an actual conflict of interest, which isn't being disputed by the government here.

[00:17:35] Speaker 04:
But there is a factual finding as to whether that actual conflict affected Mr. Perez's performance, his representation of Tovar Pupo.

[00:17:46] Speaker 04:
And the argument by Tovar Pupo is that he was coerced into pleading guilty.

[00:17:49] Speaker 04:
That's a factual finding.

[00:17:51] Speaker 04:
whether he was coerced or not.

[00:17:54] Speaker 04:
And something that the district court, we submit, after holding an evidentiary hearing that lasted, I mean, it was continued, but it lasted almost five full days, I believe.

[00:18:04] Speaker 04:
We submit that the district court was best poised to evaluate the evidence and to make what was, in some ways, also a credibility determination as to the different, as to the witnesses who were testifying before the court.

[00:18:20] Speaker 04:
I'm happy to continue answering questions on Taint.

[00:18:22] Speaker 04:
I know my opponent also addressed the issue of whether or not Mr. Tovar Pupo has a viable claim of innocence.

[00:18:29] Speaker 03:
Well, how are we supposed to, on Taint, how are we supposed to weigh facts that came out at the hearing that appeared to not be contested, like the fact that Mr. Perez didn't even have an engagement, written engagement letter.

[00:18:47] Speaker 03:
with Mr. Perez and, I'm sorry, with Mr. Pupo and couldn't remember what his fee was or the terms of his fee.

[00:18:58] Speaker 03:
Kind of basic things that go to the core of the representation and that are governed by the DC rules of professional ethics.

[00:19:12] Speaker 03:
I mean, there's a lot about

[00:19:16] Speaker 03:
just the basic mechanics of this representation that seem to be troublesome.

[00:19:23] Speaker 04:
I understand your honest concerns.

[00:19:27] Speaker 04:
And that lack of engagement letter isn't something that my counsel raised, so we didn't address it in our brief.

[00:19:34] Speaker 04:
But I would say that the court could have some comfort in the fact that Mr. Tobakupu was also represented by conflict-free counsel.

[00:19:41] Speaker 04:
And this court, in the right case, looked at the presence of conflict-free counsel

[00:19:45] Speaker 04:
in an actual conflict of interest case, and that was one factor it cited in the course of affirming the district court's denial of the motion to withdraw the guilty plea.

[00:19:56] Speaker 04:
Ms.

[00:19:56] Speaker 04:
Schaner's signature, for example, appears on the plea paperwork.

[00:20:00] Speaker 04:
She did testify that while she may not have been lead counsel, she was present, and she did participate in the process of discussing the decision to plea guilty.

[00:20:10] Speaker 03:
What did Ms.

[00:20:10] Speaker 03:
Schaner testify was her role?

[00:20:14] Speaker 03:
As far as if the case had gone to trial, did she testify at all about her willingness or ability to try the case?

[00:20:26] Speaker 04:
I'm not recalling offhand here.

[00:20:29] Speaker 04:
I don't believe that the testimony got into that area.

[00:20:31] Speaker 04:
I'm not calling for certain, but I don't believe that those questions were posed during the hearing as to would you have stayed on if the case had progressed to trial.

[00:20:44] Speaker 03:
But I mean, I guess what I'm getting at here is if this defendant believed that if he didn't plead guilty, he was in effect not really going to have a representation or decent representation because he'd obviously lose Mr. Perez.

[00:21:09] Speaker 03:
And it's not clear what machine or is going to be or she was ready to try to case doesn't that factor into whether.

[00:21:16] Speaker 03:
He felt like he really had a choice in the matter.

[00:21:20] Speaker 04:
I don't think so, Your Honor, for this reason.

[00:21:22] Speaker 04:
I mean, there is certainly record evidence, and this came out during the evidentiary hearing, the testimony that Mr. Tovar Krupa was a very bright individual.

[00:21:30] Speaker 04:
He has a forceful personality.

[00:21:33] Speaker 04:
He certainly knows how to raise issues.

[00:21:36] Speaker 04:
He's not the type of person who is going to be pressured into pleading guilty.

[00:21:39] Speaker 04:
For example, despite being represented on appeal by counsel, he requested and received authorization to file pro se supplemental brief, making his own claims.

[00:21:49] Speaker 04:
So I think the record shows that he's, Mr. Tovar Pupo, is not the type of person who would just sit by and not ask questions or raise concerns.

[00:22:02] Speaker 04:
In fact, he had questions about who would be representing him if he went to trial or if he wanted a new lawyer.

[00:22:08] Speaker 04:
He did obtain new counsel in connection with, you know, before filing the motion to withdraw his guilty plea.

[00:22:14] Speaker 04:
All right.

[00:22:16] Speaker 04:
I see that my time has expired.

[00:22:18] Speaker 04:
If the court has any questions about any other aspects of the motion to withdraw the guilty, I'm happy to answer them or just to rest on the government's brief.

[00:22:27] Speaker 01:
All right.

[00:22:27] Speaker 01:
Thank you.

[00:22:28] Speaker 04:
Thank you.

[00:22:30] Speaker 01:
Ms.

[00:22:30] Speaker 01:
Davis has one minute.

[00:22:33] Speaker ?:
OK.

[00:22:36] Speaker 02:
Very brief, probably not even one minute.

[00:22:39] Speaker 02:
But I would just like to respond to the argument that Mr. Tovar Pupo was a very intelligent and forceful person.

[00:22:47] Speaker 02:
But at the same time, I think this court has to understand that Mr. Tovar Pupo was brought to the United States from Colombia.

[00:22:54] Speaker 02:
He did not speak the language.

[00:22:56] Speaker 02:
He was counting on Mr. Perez.

[00:23:00] Speaker 02:
He retained Mr. Perez.

[00:23:02] Speaker 02:
He was counting on him to do what was right for him.

[00:23:05] Speaker 02:
And I don't think that it's really right for the government to say that Mr. Tovar Pupil, because he's an intelligent man, should have said something during the plea colloquy.

[00:23:18] Speaker 02:
And I think this court, I think it's the Roberts case, I think this court also recognized that Rule 11 colloquies are really not as

[00:23:27] Speaker 02:
as much as there may have to be, that there's always concerns about it.

[00:23:31] Speaker 02:
Mr. Tulver Pupo testified during the evidentiary hearing that he, in fact, lied during the plea agreement and he didn't know what to do.

[00:23:38] Speaker 02:
He had been told not to raise his hand or discuss anything with the court.

[00:23:42] Speaker 02:
So I think these are all factors that this court can consider when deciding this case.

[00:23:47] Speaker 02:
And if there's no further questions, I would ask that the district court's decision be reversed.

[00:23:51] Speaker 03:
All right, thank you.