[00:00:01] Speaker 04: Case number 17-3096, United States of America versus Joseph Christopher Brown Appellant. [00:00:08] Speaker 04: Mr. Ornberg for the appellant. [00:00:09] Speaker 04: Mr. Romano for the appellee. [00:00:13] Speaker 04: Good morning. [00:00:14] Speaker 04: May it please the Court? [00:00:17] Speaker 04: I'm here to ask this Court to review the well-established principles and standards set forth in the Danny Jones case. [00:00:28] Speaker 04: which Chief Judge Garland, you were a member of that panel back in 2011. [00:00:31] Speaker 04: I'm asking the court to find that the district court in this case abused its discretion when it found or did not find that there were fair and just reasons for granting the appellant motion for new trial. [00:00:52] Speaker 04: The factors that this court [00:00:56] Speaker 04: uses as set forth in the Jones case is whether the defendant has asserted a viable claim of innocence, whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government's ability to prosecute the case, and whether the guilty plea was somehow tainted. [00:01:15] Speaker 04: The government below, and I believe in their briefs, has conceded the second point, that there was no prejudice in the delay. [00:01:23] Speaker 04: I'm focused [00:01:25] Speaker 04: And I'm asking this court to focus on whether the guilty plea was somehow tainted. [00:01:30] Speaker 03: Before we get to that, I'd like to keep things in order. [00:01:33] Speaker 03: Could you talk about the question of whether there's actual innocence? [00:01:37] Speaker 03: I didn't read anything in the brief to suggest there's any disagreement with the statement of the offense that he previously agreed to. [00:01:46] Speaker 04: Well, I beg to differ slightly with Your Honor. [00:01:50] Speaker 04: Mr. Brown did differ or has asserted that he was attempting to differ with the statement of the offense and what he played guilty to, to his prior counsel. [00:02:02] Speaker 04: I was not counsel when there was a substitution of counsel, as the court well knows. [00:02:07] Speaker 04: He was on... You're his third counsel. [00:02:09] Speaker 04: I'm his third counsel. [00:02:12] Speaker 04: The first substitution of counsel was caused because his initial counsel left the Federal Public Defender's Office. [00:02:20] Speaker 04: My client asserts that he attempted to communicate to his counsel in a timely fashion his concerns about the Fourth Amendment issues in this case and the chain of custody issues. [00:02:32] Speaker 02: That doesn't get you to the question. [00:02:34] Speaker 02: The question is whether there's a viable claim of innocence. [00:02:38] Speaker 02: And the search and seizure issue is not relevant to that. [00:02:42] Speaker 02: The Supreme Court held that in the habeas case against Stone v. Powell. [00:02:47] Speaker 02: So where is the actual innocence? [00:02:51] Speaker 04: Well, the actual innocence is hinged on that. [00:02:53] Speaker 04: Again, my client believes that he had a right, he had a right certainly before he tendered his voluntary guilty plea to the district court to proceed to trial. [00:03:03] Speaker 04: He wanted to, he realized, and as I set forth in my brief, he was pressured for the reasons, for the underpinning reasons, the mental health issues. [00:03:10] Speaker 02: That doesn't go to the question whether he was guilty of the offense or not. [00:03:14] Speaker 03: Just maybe we can narrow this a little bit. [00:03:17] Speaker 03: So I'm going to read parts of the statement of the offense, and you tell me whether he disputes them. [00:03:23] Speaker 03: So the first is that during the court of this electronic chat, the defendant sent two videos depicting prepubescent children being sexually abused by adult men. [00:03:33] Speaker 03: Does he dispute that he sent those videos? [00:03:37] Speaker 04: Your Honor, the record is clear that shortly after he was arrested and throughout the process and throughout his post arrest investigation, he candidly admitted his involvement in the offense or the offenses charged in this case. [00:03:55] Speaker 04: However, [00:03:57] Speaker 04: What I'm asking the court to do today is to, of course, remand this court case back to the district court, but to give some guidance in this unique situation. [00:04:07] Speaker 04: This is, in a survey of all the cases that have addressed this issue, this is a unique situation given the level of the mental health background of my client. [00:04:20] Speaker 03: At least two previous mental evaluations by psychologists. [00:04:25] Speaker 03: Correct. [00:04:28] Speaker 03: One at the time of the magistrate's appearance, that would have been his first public defender lawyer, right? [00:04:35] Speaker 03: That's correct. [00:04:35] Speaker 03: And that resulted in a finding that he was capable of understanding the proceedings and competent. [00:04:41] Speaker 03: Right. [00:04:42] Speaker 03: But that's as to competency. [00:04:43] Speaker 03: No, I just want to be sure I get the facts. [00:04:45] Speaker 03: And then when he pled, the new public defender had yet another evaluation, and the same finding was made, that he was competent. [00:04:56] Speaker 03: As to competency. [00:04:57] Speaker 03: So what, I understand you're making the argument that there's an additional matter besides competence. [00:05:02] Speaker 03: And what is that? [00:05:04] Speaker 04: Well, that his substantial mental health background and the clinical impressions that are in the report [00:05:11] Speaker 04: should have given the district court some reason to pause and to further explore and perhaps, there was a very cursory, in the Rule 11 colloquy, there was a very cursory, you know, how do you feel today? [00:05:25] Speaker 04: Do you understand what's going on? [00:05:27] Speaker 04: Have you had any mental health? [00:05:28] Speaker 04: Yes. [00:05:29] Speaker 04: Mr. Miles, the transcript shows, are you okay with his comp to go forward? [00:05:34] Speaker 04: Yes, yes, yes. [00:05:34] Speaker 03: But I think that he also, Mr. Miles being the public defender, he also said, I was concerned. [00:05:41] Speaker 03: I had him evaluated. [00:05:42] Speaker 03: And this was the result. [00:05:44] Speaker 03: He advised the court. [00:05:45] Speaker 03: And there was no disagreement about that evaluation. [00:05:47] Speaker 03: Right. [00:05:47] Speaker 04: But then there was a second evaluation after the plea hearing, right, with the report that was sent back in June of 2017, just prior to the first sentencing in this case. [00:05:57] Speaker 04: And that report raises considerable alarms. [00:06:01] Speaker 04: And at least in my mind, it should have it in the district court's mind. [00:06:04] Speaker 04: that, you know, if the client was competent and feeling good back on either, in either December of 2017, or 16, excuse me, or in February of 2017, and then there's a six-month passage of time, I mean, it's already well documented that the client has ongoing chronic and persistent mental health issues. [00:06:24] Speaker 03: This, the last, which I take it would be the third report, is the one that's heavily blacked out in our, in our appendix, right? [00:06:31] Speaker 03: Right, but I understand the court now has an unredacted version. [00:06:33] Speaker 03: I didn't see anything in it in which the issue you're raising directly was addressed. [00:06:39] Speaker 03: That is, that the evaluator said he wasn't capable of making a voluntary plea? [00:06:48] Speaker 03: Or is there something like that? [00:06:49] Speaker 04: Well, no, it didn't address that. [00:06:51] Speaker 04: It addressed his psychological framework and where he was at that point in time or that period of time during which the evaluation was conducted. [00:07:00] Speaker 01: as compared to his lifetime of mental health issues and counseling and treatment. [00:07:20] Speaker 04: Well, that the district court was aware of the significant level, the high level of mental health history with this client and should have exercised, as I said, or explored further as to his ability to understand the nature of the proceeding, the charges, the CIS council, and all of that in light of or balanced against his mental health factors. [00:07:46] Speaker 01: But there was nothing that happened during the course of the colony itself [00:07:50] Speaker 01: would call into question that? [00:07:52] Speaker 04: No, there was nothing unusual, extraordinary that the client broke down or had some trouble. [00:07:56] Speaker 04: There was no hiccups in the proceeding in and of itself. [00:08:00] Speaker 04: It was afterwards. [00:08:02] Speaker 04: It was afterwards the client, as I understand Mr. Brown in this case, the appellant, he attempted to communicate to prior trial counsel his desire to withdraw the guilty plea as soon as possible. [00:08:14] Speaker 04: but was unable to do so effectively until the day of sentencing, which was in July of 2017. [00:08:19] Speaker 04: And then I came into the picture shortly thereafter. [00:08:25] Speaker 04: I noticed that I'm into the yellow light time, so I will reserve the rest of my time for rebuttal, unless the Court has further questions. [00:08:43] Speaker 00: Thank you, Your Honor. [00:08:54] Speaker 00: You may please the court. [00:08:55] Speaker 00: With me this morning are Chris Ellen Kolb and Andrea Hertzfeld seated to my left. [00:09:01] Speaker 00: Your Honors, [00:09:02] Speaker 00: Judge Hogan properly exercised his discretion in denying appellant's motion to withdraw from his guilty plea. [00:09:10] Speaker 00: Judge Hogan considered the relevant factors, the test that Mr. Orenberg just spoke about. [00:09:14] Speaker 00: He found that there was no taint in the Rule 11 procedure or in the entry of the guilty plea. [00:09:20] Speaker 00: He found that the Rule 11 colloquy [00:09:22] Speaker 00: was valid and that Appellant had not made out a viable claim of innocence. [00:09:27] Speaker 00: And accordingly, he appropriately exercised his discretion when he denied Appellant's motion to withdraw. [00:09:34] Speaker 00: I want to start by drawing the Court's attention to page 159 of the first part of the Joint Appendix. [00:09:42] Speaker 00: That's where Appellant began to speak at the hearing on his motion to withdraw. [00:09:48] Speaker 00: And addressing the question of whether there was any issue at the Rule 11 colloquy, [00:09:54] Speaker 00: Appellant said to the court that all of the answers I gave you were correct. [00:10:01] Speaker 00: When the court was advising him of his rights, when the court was asking him if the plea was knowing and voluntary, all of the answers I gave you were correct. [00:10:09] Speaker 00: And then he went on to say the only thing that we didn't talk about was whether somebody else had helped me make the decision to plead. [00:10:19] Speaker 00: And so, while Appellant wanted to add that caveat and spoke about the fact that he was feeling some pressure, he acknowledged that he told the judge the truth. [00:10:28] Speaker 00: This isn't even a case where Appellant is claiming that he was dishonest at the role of... The other person that he's talking about, I assume this meant his lawyer. [00:10:39] Speaker 03: Is that your understanding or is there some other person involved? [00:10:43] Speaker 00: That was my reading as well, Your Honor. [00:10:46] Speaker 00: And so Appellant talks about feeling pressure from his lawyer. [00:10:48] Speaker 00: Appellant talks about the fact that his lawyer didn't want to take the case to trial. [00:10:53] Speaker 00: But it's significant to note that Appellant was facing serious charges and was facing a significant period of time of incarceration. [00:11:01] Speaker 00: He never alleges that his lawyer did anything improper. [00:11:04] Speaker 00: And so what Appellant appears to be describing is the pressure that any person facing serious charges and facing a significant amount of incarceration [00:11:14] Speaker 00: would have to weigh. [00:11:16] Speaker 00: And it's clear that that sort of pressure, the pressure to make a decision about pleading guilty or going to trial and risking a longer sentence is not impermissible. [00:11:26] Speaker 03: It's the sort of decision that faces defendants. [00:11:44] Speaker 00: Well, the court certainly found that he entered the plea knowing involuntarily at the Rule 11 and then after the fact when evaluating the Rule 11 colloquy. [00:11:55] Speaker 00: And there's nothing in the record that really calls into question that finding. [00:12:00] Speaker 00: Appellant does have [00:12:01] Speaker 00: mental health issues, but he also bore the burden of showing that there was some taint in the Rule 11 colloquy and he didn't do that. [00:12:09] Speaker 00: He had the opportunity at the motions hearing to present evidence to testify under oath if he wanted to do so and he chose not to do so. [00:12:17] Speaker 00: The record doesn't support his claim that his mental health issues somehow tainted this process. [00:12:24] Speaker 00: despite his assertions to the contrary, which aren't substantiated other than by his conversation with the court, the eight pages or so in the transcript at the motions here. [00:12:35] Speaker 03: Well, sorry, there are at least some, at least somewhat substantiated by the law description of his mental difficulties made by the psychology. [00:12:46] Speaker 00: So yes, he does have mental health issues, and we don't dispute that. [00:12:50] Speaker 00: But as to whether or not he failed to understand something or the Rule 11 colloquy was tainted, the evaluation by the psychologist doesn't address that. [00:12:59] Speaker 00: Appellant didn't advance proof on that issue. [00:13:04] Speaker 00: And he also said at the top of his statement, that was page 159 that I referred the court to at the beginning of my argument, that my answers to the court were truthful. [00:13:14] Speaker 00: So even though he claims on appeal, he argues to this court that his mental health issues interfered with his entry of the plea somehow. [00:13:22] Speaker 00: That's not what he said to the court. [00:13:23] Speaker 00: It's not anything that he raised at the time of the Rule 11 colloquy, and it's not what he said to the court during the hearing on his motion to withdraw. [00:13:31] Speaker 01: We're reviewing a decision that disallowed withdrawal of the guilty plea to determine whether the district court abuses discretion. [00:13:38] Speaker 01: You're not taking the position that if the district court had gone the other way and allowed withdrawal of the guilty plea, it would have been an abuse of discretion? [00:13:45] Speaker 00: No, we're not taking that position, Your Honor, but this court is reviewing it for an abuse of discretion, and so our position is that the judge properly exercised his discretion in evaluating the factors here. [00:13:58] Speaker 02: This was a search without a warrant? [00:14:00] Speaker 00: Well, there was an arrest warrant. [00:14:04] Speaker 00: My understanding from the record is that at the time that the arrest warrant was executed, or shortly thereafter, that law enforcement obtained consent to search Appellant's mother's home, where he was living. [00:14:16] Speaker 00: And Appellant takes issue with whether that consent, or the person from whom consent was obtained, was valid. [00:14:22] Speaker 00: And that gets to the second prong. [00:14:25] Speaker 02: The search was not incident to the arrest warrant. [00:14:28] Speaker 00: No, I don't believe so. [00:14:29] Speaker 03: I believe it was conducted with consent of one of the parties who lived there. [00:14:40] Speaker 03: produced gigabytes of child pornography, including evidence that many more messages were sent with his devices, a telephone and a tablet. [00:14:55] Speaker 03: Who consented to the search of devices? [00:14:59] Speaker 00: My understanding from the record is that he consented to the search of the devices, that his mother or maybe his brother-in-law consented to the search of the home, and that he consented to the search of the devices. [00:15:11] Speaker 00: I don't remember, unfortunately, exactly where in the record that is, but that's my reading of the record, including the government's submissions to the court. [00:15:20] Speaker 00: It might be in the sentencing memorandum, but I'm not certain of that. [00:15:22] Speaker 00: In any event though, the evidence gained from the search of the home and from the search of the devices, while it did produce additional evidence of other acts of distribution of child pornography, the crime here was complete before the government obtained an arrest warrant, before any of those searches. [00:15:40] Speaker 00: And as the government noted and Judge Hogan found, the government had sufficient evidence to prove the offenses before any of those searches took place. [00:15:49] Speaker 00: The distribution was to an undercover agent. [00:15:53] Speaker 00: The undercover agent accessed the cloud files that Appellant had and found the child pornography that Appellant sent to him. [00:16:00] Speaker 00: The government had identified Appellant's identity before the arrest warrant and the search warrant. [00:16:07] Speaker 03: And so even if I'm proving that it was actually [00:16:11] Speaker 03: defendant, at least in part dependent on having the devices to prove that the access to the box file came from those devices. [00:16:23] Speaker 00: Well, I don't think so, Your Honor, because appellants sent the undercover agent links to the files. [00:16:29] Speaker 00: So, and they were stored, I believe, on a cloud server. [00:16:32] Speaker 03: The evidence that it's the appellant who sent it requires some evidence from a device from which it was sent. [00:16:40] Speaker 03: by video chat or something like that. [00:16:46] Speaker 00: There were other ways of proving that it was him as well He sent messages to the undercover agent showing his face the government had records from sex offender registries They had IP address records which linked back to a relative's home where appellant was living at the time So I don't deny that that information would be helpful to proving identity, but I don't think it would have been necessary to proving identity [00:17:16] Speaker 00: And that connects back to Judge Randolph's question during Palin's portion of the argument about what claims he was alleging as far as his claims of innocence. [00:17:27] Speaker 00: The claims that he raised to Judge Hogan, or I'm sorry, the claims that he raises in his reply brief to this court are three. [00:17:35] Speaker 00: A supposed Fourth Amendment violation, a supposed Fifth Amendment violation, [00:17:39] Speaker 00: and then claims about the chain of custody of certain electronic evidence. [00:17:43] Speaker 00: None of those really address whether appellant is innocent of the charges or not. [00:17:49] Speaker 00: And as the court noted, he has admitted his guilt on multiple occasions. [00:17:54] Speaker 00: He admitted his guilt to law enforcement after he was arrested. [00:17:59] Speaker 00: He admitted his guilt in court when he was under oath. [00:18:02] Speaker 00: He admitted his guilt to the pre-sentence report writer and even here today he doesn't dispute certain evidence or certain elements of the statement of offense that he did distribute child pornography in this case. [00:18:17] Speaker 00: So the appellant hasn't shown any reason to question the district court's finding that he did not assert a viable claim of innocence. [00:18:25] Speaker 00: because he fails to show any defect in the Rule 11 colloquy, because he fails to show that he asserted a viable claim of innocence, he hasn't established that Judge Hogan abused his discretion. [00:18:36] Speaker 00: And we ask this Court to affirm the findings of the District Court. [00:18:39] Speaker 00: Thank you. [00:18:46] Speaker 03: Thank you, Your Honor. [00:18:49] Speaker 04: You know, even if Mr. Brown had decided to go to trial, he's presumed innocent until proven guilty. [00:18:57] Speaker 04: So he has a viable defense, the defense of innocence. [00:19:02] Speaker 04: He tried to communicate to his trial attorney, to his district court attorney, that he wanted to withdraw the guilty plea soon after the guilty plea was taken, but he was unable to do so effectively until just minutes or an hour or so before the sentencing hearing itself. [00:19:20] Speaker 04: Um, [00:19:21] Speaker 04: The court is well aware that, you know, more deference should be given to the granting of a motion for new trial when the motion for new trial is made before sentencing. [00:19:30] Speaker 04: This is not a situation where the motion was made after sentencing. [00:19:33] Speaker 03: A motion to withdraw the plea. [00:19:35] Speaker 04: A motion to withdraw the plea. [00:19:35] Speaker 04: Excuse me, Your Honor. [00:19:36] Speaker 04: A motion to withdraw the plea. [00:19:37] Speaker 03: Can I just ask, so the claim about innocence, so we're all on the same page here, is about Fourth Amendment rights to object to the search, maybe Fifth Amendment rights [00:19:50] Speaker 03: to object to the statements, right? [00:19:52] Speaker 04: Correct. [00:19:53] Speaker 03: And neither of his two federal public defender lawyers made those arguments. [00:20:00] Speaker 03: That's my understanding, I'm sure. [00:20:02] Speaker 03: Isn't this really a claim about ineffective assistance of counsel? [00:20:06] Speaker 03: I'm not saying it's a good claim, but isn't the nature of the claim here, if he thinks that they should have raised this, isn't that the question? [00:20:15] Speaker 03: These are skilled lawyers. [00:20:19] Speaker 03: have the lawyers speak for the client? [00:20:22] Speaker 03: There are, of course, cases where the client challenges them as ineffective and sometimes cell-held. [00:20:30] Speaker 03: Isn't that the issue here? [00:20:32] Speaker 03: Not really a withdrawal of guilty plea at this point, but some kind of claim that has not yet been raised about ineffective assistance? [00:20:39] Speaker 04: Well, perhaps that claim can be raised. [00:20:42] Speaker 03: I'm not suggesting it, but what I'm saying is that you're not really making a claim of innocence. [00:20:47] Speaker 03: You're making a claim of ineffective assistance. [00:20:50] Speaker 04: Well, no. [00:20:51] Speaker 04: My argument on behalf of Mr. Brown is that the process was tainted because the court did not, as I said, explore or drill down further into the substantial mental health history of my client at the time that the guilty plea was taken. [00:21:09] Speaker 03: So the third prompt. [00:21:11] Speaker 04: The third prompt. [00:21:12] Speaker 04: The third prompt. [00:21:14] Speaker 04: And I think this is a unique situation. [00:21:16] Speaker 04: You know, in a survey of the cases of both Apple East Council and myself have presented to the court, there is not such a significant mental health component. [00:21:24] Speaker 04: to this type of motion to withdraw the guilty plea situation. [00:21:30] Speaker 04: All the other motions to withdraw guilty pleas were based on other things, not the mental health component. [00:21:36] Speaker 04: Of course, in the Jones case, there was a small part of the case that involved a competency review, but that's not what I'm focusing on here. [00:21:45] Speaker 04: I'm focusing on the lifetime mental health history [00:21:49] Speaker 04: And his ongoing is, and in the report it says persistent and chronic factors that suggest that he has a significant mental health history that should have been given deference to by the court, by the district court. [00:22:05] Speaker 04: Thank you. [00:22:06] Speaker 03: I will take this matter under submission. [00:22:08] Speaker 03: We thank counsel for both sides for an excellent argument. [00:22:10] Speaker 03: Thank you, Your Honor. [00:22:14] Speaker 03: Oh, and we appreciate your taking the case. [00:22:17] Speaker 03: You took this case on appointed by the court. [00:22:18] Speaker 03: We appreciate it.