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Case number 19-3040, United States of America versus Floyd Clark, a balance.

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Mr. Kirsch for the balance, Mr. Randolph for the appellee.

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Mr. Kirsch, good morning.

[00:00:14] Speaker 00:
Good morning.

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If you'd like to proceed.

[00:00:18] Speaker 00:
Yes, thank you very much.

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While the case was pending, the court asked specifically for argument regarding the issue of finality on the 1291.

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So I would like to start my initial

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seven minutes of time addressing 1291.

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I would cite- Excuse me, counsel.

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Wasn't our question broader?

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What is the jurisdiction in this case?

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Well, I read it as specifically whether or not the issue of finality was what the court wanted to- Yes, but that doesn't just refer to 1291, does it?

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No, but in jurisdiction, are you referencing the 2255 issue that was raised?

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Yes.

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Yes.

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Well, go ahead and as far as I'm concerned, you can talk about whatever.

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Very well.

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Thank you, Judge.

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Well, under the 1291, I believe is controlled by Gillespie versus United States, which is cited 379 US 148.

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It was a 1964 decision from the Supreme Court.

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And the Supreme Court said that under 1291 appeals must be taken from final orders

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But then the court specifically said that a decision final within 1291 does not necessarily mean the last order possible to be made in the case.

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Court went on to say it is impossible to devise a formula to resolve all marginal cases.

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And in Gillespie, the court adopted or stated what they called the practical approach to the issue of finality.

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And that under the particular circumstance, I would submit under the particular circumstances of this case,

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that for practical reasons, the issue that is before this court is in fact a final judgment, final order of Judge Friedman.

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The practical reasons we would submit are that the substantive issue, the recantation was raised initially in the pro se pleading and then supplemented by counsel in 2015.

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The secondary issue on the 9-20.

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Excuse me, counsel.

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The 924C issue is still before the judge.

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That's correct.

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Isn't that the problem?

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No, I would submit, Your Honor, respectfully that under the practical approach, because the 924C issue arose subsequent to the substantive issue, that there is a good practical reason under Gillespie for the judge to have decided

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the substantive issue and for this appeal to have been taken at the time that he made the decision on the substantive issues.

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I would note that the government, well, number one, I would note that Judge Friedman granted the certificate of appealability.

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And in the motion for the certificate of appealability, in the government's opposition, they did not raise finality.

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So this came up just prior to this argument.

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But counsel, jurisdictional issues doesn't have to be raised by the parties.

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I understand, but I would submit to the court the fact that they didn't address it means that they weren't considering it.

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And that I think I would submit to the court that... Counsel, that 10 cents, it gets you on a trolley car.

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Well, I would submit to the court.

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I understand what the court is saying, but I believe that using this practical approach and taking into account that Judge Friedman

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specifically issued the order and in it, he also, well, he issued the order and then he issued the certificate of appealability that he considered the issue to be a final determination.

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So I would submit under those factors, taking into account the nature of the case and also using the practical approach, I would submit that Mr. Clark has an immediate liberty interest

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in getting an adjudication on the merits of the substantive issues.

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Can I read a couple of quotes from a second circuit case, 1986.

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Obviously it's not controlling on us, but it is as on point as I could find.

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It's called Bermudez v. Smith.

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And in that case, a habeas petition was raised at the district court

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On several claims, some of the claims were decided some of the claims were not.

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The habeas petition or appealed to the Second Circuit and the Second Circuit said we don't have appellate jurisdiction here because

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part of the claims are still pending.

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And what it said is that a final decision generally is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

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And specifically with regard to the habeas case with multiple claims, it pointed out the two and I'm quoting here to allow separate claims to be dismissed and then heard on appeal while other claims remain to be adjudicated by the district court, which is exactly our case here.

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would encourage piecemeal and time-consuming litigation.

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It would run contrary to longstanding policy grounded in the nature of the relationship between trial and appellate courts, including the saving of time and the avoidance of unnecessary expense and unnecessary appellate lawmaking, as well as a duplicative effort on the part of all concerned.

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As I said, that decision is not controlling on us, but can you tell me why we shouldn't find it persuasive?

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I understand the reasoning in the Second Circuit and that follows generally the reasoning of appellate courts that have addressed the issue on finality.

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My argument is that Gillespie opens the door a little bit and suggests that appellate courts should look at the practical approach and how does this affect, from a practical perspective, the litigant.

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I would note that this court in a decision that was an order, excuse me, that was rendered in May of 2020, Earl versus Security and Exchange Commission, the site is Westlaw4332907.

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In that case, that was an appeal from a denial of a partial motion to dismiss.

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And in Earl, this court said that the appellant did not

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satisfy under the practical approach.

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But what Earl versus SEC does say is that they reiterated the vitality of Gillespie and the notion in Gillespie that appellate courts should take this quote unquote practical approach so that litigants, when they have practical reasons why issues should be decided, you can still have remaining an issue before the trial court.

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Let me ask you, Mr. Kearse, I agree with you in this case in that if we were to rule with you, that would end this prosecution.

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The 924C, if we wait for that, is really the tail wagging the dog.

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And that is a practical reason to go ahead and consider this issue.

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But how do we determine

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If that's the test, in other words, what's left before the district judge, and if what's left is not determinative of whatever issue is being appealed, we would go ahead.

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Is that the test that you would apply or that you think Gillespie would apply?

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Well, I think, yes, Your Honor, I believe that Gillespie leaves the door open and specifically suggests

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in the opinion that there's no, what they call a magic formula.

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Every case has to be decided on its individual merits.

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And in this case, the issues are completely separate.

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We have one recantation, and then the second issue, the subsequent issue is the 924C count.

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And we really, we had to wait for a determination from the Supreme Court, which finally came down in the United States versus Davis on the 924C.

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That issue is now, the 924C is back before Judge Friedman, and there's a lot of litigation that still has to occur in that case before a final decision on that issue can be adjudicated.

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But if we were to buy your argument with this issue before us, the recantation, that's the end of the 924C.

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That's correct, because that would be dispositive.

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on the recantation.

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If this court ruled in appellant's favor on the recantation, Judge Freeman's already ruled that without Mr. Walker's testimony, the government has no case.

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Are you relying on habeas corpus language or 1292, which is it?

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Well, the habeas, it's 2255 and we're dealing with the one year statute.

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Yes.

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But your view is that 1292, with a more flexible view of finality, overrides the habeas corpus provisions?

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Yes.

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And again, I would say that I understand what Judge Walker was reading from, and I understand that's the language you find in most of these cases.

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But we do have Gillespie, and I submit that the practical approach is, at least in this jurisdiction, still a viable approach to take in a case like this.

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All right, if there are no more questions, then Mr. Kearse, we'll give you a couple minutes in reply.

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Mr. Randolph.

[00:10:29] Speaker 02:
Thank you.

[00:10:32] Speaker 04:
Good morning, Your Honors, and may it please the Court, Daniel Randolph for the United States.

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I'd like to begin also by addressing the jurisdictional issue that the court identified in its order.

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The government also believes that this was a final, appealable order, although for a different reason and different rationale than was articulated by appellant.

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As explained in our brief, appellant's newly discovered evidence claim was, in substance, a Rule 33 motion.

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And because rule 33 and section 2255 are distinct procedural vehicles, this court has jurisdiction to review the denial of a rule 33 motion, even though there are section 2255 claims pending before a district court.

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And we would just point the court to two sources of authority for this proposition.

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The first is an older case from this court, but it's still good law and it's still cited in the treatises.

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That's Bruno versus United States, B-R-U-N-O.

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This is 180F, second, 393.

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And that's DC Circuit, 1950.

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And this case holds two things.

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that are important here.

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First, that a rule 33 motion is properly understood as quote part of the original criminal proceeding.

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And the second holding is quote that a section 2255 motion commences a new and independent proceeding.

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So not only are these

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different types of motions, but they're actually different proceedings.

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And then even more on point here is a Seventh Circuit case.

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This is United States versus Steele, S-T-E-E-L-E.

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And this is an unpublished case, but we would cite it for its persuasive value here.

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It's 72, federal appendix, 478, Seventh Circuit, 2003,

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And this is a Fairchild-Posner-Wood decision.

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In a single motion, appellant brought newly discovered evidence claims and constitutional error claims.

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And the district court denied the newly discovered evidence claims under Rule 33 and sent it up on appeal.

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The district court reserved on the 2255 claims

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the Seventh Circuit held that it had jurisdiction over the Rule 33 denial, even though there were still 2255 claims pending before the district court.

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And so we think that those two pieces of authority are fairly strong support for the governor's position here.

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Council, what was the theory of the Seventh Circuit?

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The theory, Your Honor, was that these are utterly distinct procedural vehicles.

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And that's a direct quote from the opinion.

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They have different time limits.

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They have a different scope in terms of the substantive claims that can be brought within each provision.

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And this is outlined in the government's brief as well, because we do think the procedural argument should carry the day here.

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Did the Seventh Circuit conclude it was a final order?

[00:14:34] Speaker 04:
Yes, Your Honor.

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A final partial order, a partial final order, is that correct?

[00:14:40] Speaker 04:
Well, I don't recall that the court used the word partial.

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That's in effect my understanding of the case, right?

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I'm not familiar with the case, but I gather you're saying it's

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The Seventh Circuit thought it was a partial final order, therefore it was a final order.

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I think that's a fair way to characterize it.

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Yes, Your Honor.

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The holding was that I have great respect for the Seventh Circuit.

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But why isn't that gobbledygook?

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Well, Your Honor, I think far from gobbledygook, I think it's actually the legally correct position here.

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This court has an obligation to look beyond the label of a motion and to construe it according to its substance.

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And that's especially the case when it comes to jurisdiction.

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And it's especially the case when it comes to habeas.

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because there are all sorts of incentives that litigants have to call their motions something other than what they really are.

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And one good example of this is, apologies, I'm going to cite another Seventh Circuit case here, but the Evans case that's cited in the government's brief, this is sort of the flip of this case.

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The defendant brought a Rule 33 motion, and the district court treated it as a Rule 33 motion.

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but this was Judge Easterbrook.

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He said, no, this wasn't a rule 33 motion.

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This was a section 2255 motion and it's second or successive.

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And so the district court doesn't have jurisdiction over this.

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And so analogously, this court, we would submit must do the same thing here with respect to appellants, what appellant has called a 2255 newly discovered evidence claim.

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This was in substance,

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a rule 33 motion and that is also highly relevant for this court's jurisdictional analysis.

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If we were to accept everything you just said, then that would save Mr. Clark here in terms of it would allow him to appeal the district court's order.

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However, it would doom his appeal because we would be viewing the original motion by him as a rule 33, which we all agree is time barred.

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Am I following?

[00:17:23] Speaker 04:
Yes, your honor.

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That's the government's position that that this is the legally correct outcome here.

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Appellant's motion was in substance a rule 33 motion, but it is time barred.

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Also because it was in substance of rule 33 motion, this court has jurisdiction to reach that holding.

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Unless the court has any further questions on the jurisdictional issue, just make a brief point about the procedural argument.

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We don't think there's a lot of gray area here.

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The law in this area is actually even more settled than the government initially understood when submitting its brief.

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In the course of preparing for this argument, came across another older case.

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This is from the World War II era, but it's from this court.

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And what happened in this case, this is Hodge versus Huff.

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H-O-D-G-E versus Huff, H-U-F-F, 140, F second, 686.

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And this is from 1944.

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And so it isn't cited so much anymore, but it's still good law.

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And what happened in that case, it was a habeas case.

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And the defendant brought a habeas motion based on perjury.

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And the court held that

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Perjury, alleging perjury alone without alleging and substantiating a claim that the prosecution either knew or should have known about that perjury is not a due process claim and it's not cognizable under habeas review.

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And so in some sense, we think this court has essentially answered this question.

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75 years ago, and that's consistent with with all of the cases the government did cite in its brief, including the Herrera case, as well as, excuse me, as well as the Barry case, the Connolly case from the First Circuit.

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We think that this procedural argument really is the legally mandated outcome here, and that there isn't a whole lot of gray area.

[00:19:43] Speaker 01:
Mr. Randolph, was Hodge an actual innocence case involving perjury?

[00:19:48] Speaker 04:
Your Honor, it was not an actual innocence claim.

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And I'm actually not even sure that in the 1940s, the notion of an actual innocence claim was even in the lexicon.

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On the actual innocence point, we would just point to the government's footnote four in its brief, which does explain that the Supreme Court has assumed without deciding that there is an actual innocence claim, but it has also assumed that if there is such a claim, the defendant would have to meet an extraordinarily high threshold to satisfy that claim.

[00:20:26] Speaker 01:
I think the standard the Supreme Court says is the defendant would have to unquestionably establish innocence.

[00:20:34] Speaker 04:
Yes, your honor.

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And so we would submit that appellant has not attempted to meet that standard here and could not meet that standard here.

[00:20:42] Speaker 04:
Seeing that my time has expired.

[00:20:45] Speaker 04:
Oh, sorry.

[00:20:45] Speaker 04:
I see that.

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Is there a question?

[00:20:48] Speaker 01:
No.

[00:20:49] Speaker 04:
Thank you, your honor.

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We would just ask that the court affirm the denial of appellant's motion.

[00:20:53] Speaker 04:
Thank you.

[00:20:54] Speaker 02:
All right.

[00:20:54] Speaker 02:
Thank you, Mr. Randall.

[00:20:56] Speaker 02:
Mr. Kirsch, why don't you take a couple minutes?

[00:20:59] Speaker 00:
Okay.

[00:20:59] Speaker 00:
Thank you, Your Honor.

[00:21:00] Speaker 00:
Well, let me just start out by saying there are some aspects that I believe both parties agree on, and that specifically that is that Rule 33 and habeas under 2255 are utterly distinct.

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We'll call them remedies.

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And there are different timeframes.

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And so they are different procedures.

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One is part of the criminal case.

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One is actually a civil

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case.

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This case is litigated under 2255, which has the one year time requirement from when the defendant reasonably should have known about the evidence.

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Rule 33 is much more strict.

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It's much more firm.

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It's three years.

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You're either in or you're out, and there's no dispute.

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And I would direct the court's attention to Judge Friedman's

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opinion.

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He wrote a lengthy opinion in this case.

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It was almost 50 pages in length.

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And he tackled this issue head on.

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And Judge Friedman said that this is a 2255 because it raises a constitutional issue.

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It raises the Fifth Amendment due process issue.

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And as long as the 2255 raises a constitutional issue, the trial court has jurisdiction.

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And then this court, I would submit, would have jurisdiction to hear it.

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And that's how this case was brought.

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Judge Freeman specifically cited another opinion.

[00:22:28] Speaker 00:
I understand it's another trial court opinion, but he cited an opinion from Judge Hogan, where Judge Hogan ruled in a very similar situation with respect to the issue of recantation that this is a constitutional issue.

[00:22:43] Speaker 00:
So we submit that this court should decide the issue under the 2255, which is what Judge Freeman did when he had the opportunity to rule upon it.

[00:22:52] Speaker 00:
And I see that my time is just about up.

[00:22:54] Speaker 00:
And so I will conclude with that.

[00:22:57] Speaker 02:
All right.

[00:22:57] Speaker 02:
Thank you, gentlemen.

[00:22:59] Speaker 02:
If there are no questions, then the case is submitted.

[00:23:02] Speaker 00:
Thank you very much.