[00:00:00] Speaker 02:
Case number 19-3042 et al.

[00:00:03] Speaker 02:
United States of America versus Linnell Tucker at balance.

[00:00:09] Speaker 07:
Good morning, counsel.

[00:00:11] Speaker 07:
Counsel for Mr. Fields.

[00:00:14] Speaker 07:
Is it Rosenweg, Rosenweig?

[00:00:16] Speaker 07:
Rosenweig, your honor.

[00:00:18] Speaker 07:
Rosenweig.

[00:00:20] Speaker 07:
Good morning, Mr. Rosenweig.

[00:00:21] Speaker 07:
Whenever you're ready, please proceed.

[00:00:24] Speaker 07:
Good morning, your honor, and may it please the court.

[00:00:28] Speaker 05:
No, he doesn't.

[00:00:30] Speaker 05:
No, he doesn't with those three words, judge made him made it clear that he misunderstood the nature of Mr fields his claim to self representation, denying that it had a constitutional dimension, considering it only a statutory claim.

[00:00:47] Speaker 05:
This was legal error.

[00:00:49] Speaker 05:
And legal error of this sort is, as the Supreme Court has told us, per se, an abuse of discretion.

[00:00:55] Speaker 05:
Since representational claims of this nature are structural, they are not subject to harmless error review.

[00:01:03] Speaker 05:
And it follows a fortiori that this court should reverse the decision of Judge Mata and remand this case for a new trial at which Mr. Fields may represent himself if he wishes.

[00:01:14] Speaker 07:
The government does- There's a Sixth Amendment aspect to this.

[00:01:19] Speaker 07:
and there's a statutory aspect to this.

[00:01:22] Speaker 07:
But is there any authority for the proposition that under the Sixth Amendment, the right to self-represent is absolute when it's asserted in the middle of the trial?

[00:01:35] Speaker 05:
No, Your Honor, there is not.

[00:01:37] Speaker 05:
Our contention, however, would be that it is essential that the judge addressing whether or not to conduct a balancing test amid trial understand that the nature of the right being asserted is constitutional, not statutory.

[00:01:51] Speaker 05:
It's no different, for example, than if this court were to fail to distinguish between a constitutional claim of due process and a simple APA claim of failure to follow an administrative procedure.

[00:02:03] Speaker 05:
Constitutional claims always get a greater weight

[00:02:05] Speaker 07:
Is there any reason to think, well that might or might not be true, and there's a line of authority, there's a line of Sixth Amendment authority under Ferretta and there's a line of authority under the statute, is there any reason to think that

[00:02:26] Speaker 07:
for this kind of situation with the right asserted mid trial that the balancing test would come out differently under one than under the other.

[00:02:36] Speaker 05:
We have no way of knowing that, Your Honor.

[00:02:38] Speaker 05:
We have no way of knowing how Judge Mator would have resolved this case had he properly valued the right, had he properly understood that it was constitutional nation.

[00:02:46] Speaker 05:
Indeed, he said, I am confused.

[00:02:50] Speaker 05:
I don't understand, he said, why they, the D.C.

[00:02:53] Speaker 05:
Circuit, that is you, characterize it as a constitutional right, because Dougherty doesn't say that.

[00:02:58] Speaker 05:
That, of course, is because Doherty predated Ferretta by three years.

[00:03:03] Speaker 05:
And so he was relying on case law that predated the existence of this constitutional right.

[00:03:09] Speaker 05:
Our claim here is simply that without giving appropriate constitutional weight and value to the claim, he has committed, per se, legal error.

[00:03:20] Speaker 05:
And as the Supreme Court has told us, that is always an abuse of discretion by definition, irrespective of whether or not the result might be the same had he done it the right way.

[00:03:29] Speaker 05:
We will never know that.

[00:03:31] Speaker 05:
We can't prove or contend about it counterfactual to any degree.

[00:03:36] Speaker 07:
Why would we think the constitutional standard is stricter?

[00:03:41] Speaker 07:
usually constitutional rights are a floor, right?

[00:03:46] Speaker 07:
There's a bare minimum of protection that a defendant gets, and Congress by statute or courts by rule can give a defendant greater rights.

[00:03:57] Speaker 07:
They can, Your Honor.

[00:03:58] Speaker 07:
Why would we think that the statute

[00:04:01] Speaker 07:
gives the defendant less than he already would have had under the Sixth Amendment?

[00:04:07] Speaker 05:
Well, two reasons, Your Honor.

[00:04:09] Speaker 05:
The first is that the statute predates the recognition of the constitutional right by the Supreme Court.

[00:04:15] Speaker 05:
And had the Supreme Court thought that to be the case, they would have, in Ferretta, said that the statute suffices, which they did not.

[00:04:23] Speaker 05:
And the second is that I know of no case, and perhaps

[00:04:26] Speaker 05:
counsel for the United States can identify one.

[00:04:28] Speaker 05:
I know of no case in which any court has ever said the statutory right provided here is of greater significance and greater protection than that which was provided in the Constitution.

[00:04:41] Speaker 06:
What about the speedy trial right?

[00:04:43] Speaker 06:
Isn't the constitutional speedy trial right a lot weaker for a defendant than the statutory speedy trial right?

[00:04:50] Speaker 06:
That's true, your honor.

[00:04:52] Speaker 05:
Obviously, there would be some cases in which Congress can magnify constitutional rights by statute.

[00:04:59] Speaker 05:
I would, for example, posit on the other side, the differential between Miranda constitutional rights and the statutory Miranda case that was resolved in the Dickerson case many years ago, in which the court has pretty much said that the constitutional right exceeds or at least equals the statute.

[00:05:16] Speaker 05:
The question of course before us in this case is the nature of the right to self-representation.

[00:05:24] Speaker 01:
Mr. Rosenzweig, do you agree if we disagree with you about Judge Metha applying the correct legal standard here, then do you think it's an abuse of discretion standard under which we need to review this decision?

[00:05:40] Speaker 05:
Well, I mean, it is clear that this circuit has never opined upon the standard to be applied to mid-trial assertions of a right to self-representation.

[00:05:50] Speaker 05:
The two cases that we've relied on before both were dicta, authority predating for it in Washington involving not a claim of self-representation, but a claim of a right to present closing argument.

[00:06:01] Speaker 05:
So the court would be free, I think, to adopt whatever standard it wanted to.

[00:06:08] Speaker 05:
I would advocate for a standard that gave weight to the constitutional right and said that the burden was on the government and the court to to overcome that right with some showing of need of so abusive discretion would probably be your standard of review, but I would import within that a more significant standard of assessment earlier on.

[00:06:30] Speaker 05:
I see that I am running out of time and I would be remiss if I did not, for at least a minute, turn to the Fourth Amendment issue that also is involved in this case.

[00:06:41] Speaker 05:
Imagine if a baseball player had hit a home run and then stood its home plate and said, I don't want to run, throw me another pitch, I want to take another swing at it.

[00:06:51] Speaker 05:
That would be nonsensical.

[00:06:52] Speaker 05:
Yet that is what the government would have you believe Officer Haskett did with respect to his traffic stop of Mr. Fields.

[00:06:59] Speaker 05:
Having already, they say, hit a home run,

[00:07:02] Speaker 05:
that has observed a traffic violation that provided probable cause sufficient to stop Mr. Fields.

[00:07:09] Speaker 05:
He nonetheless waited, and as he said, maintained the visual to see if the car would become mobile in an attempt to conduct a traffic stop for a traffic violation.

[00:07:18] Speaker 05:
That is to take a second swing at a second pitch and hit another home run.

[00:07:22] Speaker 05:
That makes no sense.

[00:07:23] Speaker 05:
The reality is, of course, that officer Haskett had not observed a speeding violation, at least not one that he recalled immediately, and he was awaiting to see if there would be a drug transaction, as any reasonable officer might, or for the court to resume motion and to violate the traffic laws of Maryland.

[00:07:43] Speaker 05:
When neither of those things eventuated, he retrospectively realized that speeding had occurred and imposed that vision retrospectively on the reality he had seen before.

[00:07:55] Speaker 05:
But his own testimony to the fact that he was waiting for the car to resume motion is fundamentally inconsistent with that, and with respect, renders his testimony non-credible.

[00:08:08] Speaker 05:
For us, that means that Judge Maeda was clearly erroneous in his decision to credit that testimony, and with respect, ought to have discredited the testimony and not accepted it as a basis for finding probable cause to conduct the stop, and thus to suppress that evidence, which was the fruit, and the subsequent search of the barbershop, which was the fruits of the poisonous tree.

[00:08:34] Speaker 06:
Can I ask a question, Mr. Rosenzweig, about that last point, the fruit of the poisonous tree argument?

[00:08:41] Speaker 06:
Do you know, was that argument made to the district court?

[00:08:45] Speaker 05:
I believe it was, Your Honor.

[00:08:47] Speaker 05:
OK.

[00:08:47] Speaker 06:
If it wasn't, do you think?

[00:08:49] Speaker 05:
I can't point you to it exactly in the record right now, but I believe it was in a post-trial, post-hearing brief.

[00:08:55] Speaker 06:
OK, very good.

[00:08:57] Speaker 06:
If by any chance it was not made to the district court, do you think that means that it's been waived?

[00:09:05] Speaker 05:
Yes, I would assume so, your honor.

[00:09:07] Speaker 05:
Yes.

[00:09:09] Speaker 06:
I appreciate it.

[00:09:10] Speaker 06:
Thank you.

[00:09:12] Speaker 05:
Thank you, your honor.

[00:09:13] Speaker 05:
I'll reserve the balance of my time, if I may.

[00:09:16] Speaker 07:
Do my colleagues have any other questions?

[00:09:20] Speaker 07:
All right.

[00:09:21] Speaker 07:
We'll hear from Ms.

[00:09:22] Speaker 07:
Schmidt now.

[00:09:24] Speaker 02:
Thank you, your honor.

[00:09:25] Speaker 02:
And may it please the court.

[00:09:27] Speaker 02:
My name is Amelia Schmidt.

[00:09:28] Speaker 02:
I'm representing Abdul-Samuels.

[00:09:30] Speaker 02:
And today I'll be arguing the conflict of interest and ineffective assistance issues raised by Mr. Samuels.

[00:09:37] Speaker 02:
Mr. Samuels trial counsel had a conflict.

[00:09:40] Speaker 02:
His daughter was applying for a position at the US attorney's office while that lawyer was also representing Mr. Samuels.

[00:09:47] Speaker 02:
The lawyer never disclosed that to Mr. Samuels.

[00:09:50] Speaker 02:
He told it to the prosecutor, but he didn't tell Mr. Samuels and he did not tell the trial court.

[00:09:55] Speaker 02:
And when the trial court found out about it, the trial court held that there was a conflict.

[00:10:00] Speaker 02:
So what comes next?

[00:10:01] Speaker 02:
And the Supreme Court says in Kyler versus Sullivan that if a lawyer was conflicted in the course of a criminal case, then there are two questions that have to be addressed.

[00:10:13] Speaker 02:
One, did the lawyer pull any punches?

[00:10:15] Speaker 02:
Was there a lapse in representation?

[00:10:16] Speaker 02:
And then two, was the lapse in representation actually caused by the conflict?

[00:10:22] Speaker 02:
And even if it wasn't caused by the conflict, then was the lapse still in effective assistance under Strickland?

[00:10:27] Speaker 02:
So we've established at least three lapses in representation, which I can talk about, but the question still remains, were those caused by the conflict or were those in effective assistance under Strickland?

[00:10:39] Speaker 02:
But either way, hearing on remand is necessary to resolve these questions.

[00:10:44] Speaker 02:
So I'll start by talking about the failure, the council's failure to raise

[00:10:49] Speaker 02:
the issue of that Mr. Samuels had been using cocaine 30 minutes before he spoke to law enforcement.

[00:10:56] Speaker 02:
So Mr. Samuels again, he'd been using cocaine.

[00:10:59] Speaker 02:
This was not disputed at trial.

[00:11:00] Speaker 02:
The prosecution actually talked about it twice in closing about how Mr. Samuels had been found by agents putting cocaine up his nose when the agents arrived at his girlfriend's house.

[00:11:10] Speaker 02:
30 minutes later, Mr. Samuels talked to law enforcement

[00:11:13] Speaker 02:
They asked him if they were going to find a gun upstairs.

[00:11:17] Speaker 02:
And Mr. Samuel said that there was a gun under the bed in his girlfriend's apartment for his protection.

[00:11:23] Speaker 02:
Mr. Samuels was charged and convicted of felony possession.

[00:11:25] Speaker 02:
And it was that statement.

[00:11:27] Speaker 02:
That was the only statement that convicted Mr. Samuels of the felony possession charge, because it was, again, it was his girlfriend's apartment.

[00:11:34] Speaker 02:
His girlfriend testified that the gun was hers, but the government played Mr. Samuel's interview in closing.

[00:11:40] Speaker 02:
said listen when he's pushed he admits that there's a gun under the bed and that and he says that it's for that it's his for his protection so sorry what's the argument that the lawyer should have made that that statement was involuntary yes that it was well that it was it was not knowing or voluntary because he had been using cocaine 30 minutes prior to making it and what do you do with

[00:12:06] Speaker 07:
lots of cases, Colorado versus Connolly comes to mind, which stand for the proposition that if the statement is not the product of coercion by the police, there's not a constitutional problem with it.

[00:12:22] Speaker 02:
Well, I believe it was, I mean, he had an obligation to at least raise it in a motion to suppress, given how important it was at

[00:12:33] Speaker 02:
I mean, it's something that at least should have been litigated in a motion to suppress.

[00:12:38] Speaker 07:
How could it have succeeded?

[00:12:40] Speaker 07:
What's the theory that that statement was coercive because he was on drugs at the time?

[00:12:47] Speaker 02:
I don't think it's that it was coerced.

[00:12:49] Speaker 02:
It was that it wasn't knowing or voluntary.

[00:12:55] Speaker 02:
Because he because he had been using cocaine he was not in his right mind and the trial counsel did say in the in his motion to suppress that Mr samuels had been suffering from heroin withdrawal, but the problem is that's you know again I have a lay person's understanding of heroin withdrawal versus cocaine use, but they're not the same things.

[00:13:13] Speaker 02:
And again, just given how central the statement was to the government's case on the felony possession charge.

[00:13:20] Speaker 07:
This isn't an in court right that's subject to the knowing and voluntary waiver standard.

[00:13:31] Speaker 07:
I mean, the default rule is if the police approach someone and talk to him,

[00:13:38] Speaker 07:
they don't have to mirandize someone outside of a custodial situation.

[00:13:45] Speaker 07:
And the person is free to speak or not, but it's fine for the police to ask the question.

[00:13:53] Speaker 02:
Well, we're not challenging the police asking the question.

[00:13:57] Speaker 02:
The issue is that the trial counsel didn't raise in his motion to suppress the fact that Mr. Samuels had been using cocaine.

[00:14:04] Speaker 02:
That's the issue.

[00:14:06] Speaker 07:
And I mean, we at least needed... In order to do what?

[00:14:09] Speaker 07:
In order to keep the statement out on the theory that it was coerced or in order to challenge the reliability of the statement?

[00:14:20] Speaker 02:
To challenge the reliability of the statement.

[00:14:23] Speaker 02:
I'm sorry.

[00:14:23] Speaker 07:
I mean, it seems like neither one works.

[00:14:25] Speaker 07:
The coercion theory doesn't work for reasons that I said.

[00:14:29] Speaker 07:
And the reliability theory doesn't work because they found the gun.

[00:14:34] Speaker 07:
I mean, the statement was truthful.

[00:14:36] Speaker 02:
Well, they found the gun.

[00:14:37] Speaker 02:
But the question was whether it was his and he said, you know, he didn't say it was his in a statement.

[00:14:41] Speaker 02:
He said it was for his protection.

[00:14:42] Speaker 02:
And that's what the government, you know, the government characterized it in closing.

[00:14:46] Speaker 02:
There was an admission that it was his

[00:14:48] Speaker 02:
But it was the only piece of evidence the government had.

[00:14:51] Speaker 02:
And we don't even have a record of why counsel decided not to pursue that argument.

[00:14:58] Speaker 02:
We just don't have a record.

[00:14:59] Speaker 02:
And under the DC Circuit's case law on remand for ineffective assistance claims, if there's no record of whether or not counsel pursued a strategic decision or why he didn't pursue it, that needs to be remanded to the district court to be litigated.

[00:15:17] Speaker 02:
So I realize I only have a little bit of time left, but I'd also like to talk just very briefly about the second error, which was the failure to investigate and timely challenge the government's expert on- Schmidt.

[00:15:31] Speaker 02:
Yes.

[00:15:32] Speaker 06:
Just before you go there, let me ask a kind of- We'll give you time.

[00:15:35] Speaker 06:
Bigger picture.

[00:15:36] Speaker 03:
Thank you.

[00:15:37] Speaker 06:
It applies to all of the Kyler standard arguments.

[00:15:44] Speaker 06:
In Strickland,

[00:15:47] Speaker 06:
when you do the first inquiry about performance, deficient performance, obviously it has to be quite bad performance.

[00:15:54] Speaker 06:
It can't just be slightly worse than ideal.

[00:15:59] Speaker 06:
Do you read the Kyler inquiry about how a conflict affected the performance of an attorney to be a different inquiry than that?

[00:16:13] Speaker 06:
And if so, tell me,

[00:16:16] Speaker 06:
How much does a potential conflict have to affect the performance of the attorney in order to satisfy Kyler?

[00:16:26] Speaker 06:
Is it enough for the potential conflict to have just affected the attorney's performance by 1%, just a teeny bit worse performance than the attorney would have done absent the potential conflict?

[00:16:44] Speaker 02:
Well, I think there are a few questions there, but I'm not, I don't know that Kyler lays out a bright line test about how much it had to have affected the performance.

[00:16:56] Speaker 02:
I do think that under the DC circuits, you know what what case law we do have from the DC circuit about remanding conflict of interest claims, you know the the notion

[00:17:07] Speaker 02:
The same notion that applies in the ineffective assistance context, I think, applies in the conflict of interest context, which is that, you know, if there is a question, if there's a question of how much it did affect the deficiency or the lapse in representation, that's something that the trial court is best positioned to address because, you know, it oversaw the trial.

[00:17:25] Speaker 02:
It's the most familiar with the record in the case and with that large performance.

[00:17:29] Speaker 06:
What about when the

[00:17:30] Speaker 06:
Sorry, go ahead.

[00:17:33] Speaker 07:
I'm finished with that.

[00:17:35] Speaker 07:
I had a similar question.

[00:17:39] Speaker 07:
And you can think about it either in terms of the degree of deficiency, Strickland versus Kyler, or you might think of it in terms of how you prove causation, right?

[00:17:53] Speaker 07:
Strickland is a normal

[00:17:56] Speaker 07:
Conventional causal chain, which is does the did the deficient performance cause prejudice harm the defendant on the bottom line.

[00:18:05] Speaker 07:
Kyler is different.

[00:18:06] Speaker 07:
It's this odd idea of linking linking the deficiency back to the conflict and

[00:18:17] Speaker 07:
that seems like a hard thing for you to prove.

[00:18:21] Speaker 07:
So just to come back to the issue Judge Walker raised, which is how would you prove that a conflict of interest caused deficient performance if you look at the overall record and it seems like it's a relatively minor mistake in the context of

[00:18:46] Speaker 07:
a representation where the lawyers seem to do a very good job overall.

[00:18:52] Speaker 02:
Well, there are a couple points there.

[00:18:54] Speaker 02:
I mean, I think in one on on what you need to show, I mean, and what we would need to show.

[00:19:01] Speaker 02:
I mean, we just we don't have the record right now to show the causal link.

[00:19:06] Speaker 02:
I mean, we have some proffers from the government

[00:19:09] Speaker 02:
about certain, you know, certain dates in the hiring timeline, but we don't know, for example, when, when the trial council actually knew that his child was applying for employment.

[00:19:18] Speaker 02:
I mean, that's obviously an important fact that would have to be explored on remand.

[00:19:24] Speaker 02:
And, you know, I mean, for the reasons we've laid out in our briefs, these errors, each were serious to rise to the level of either ineffective assistance under Strickland

[00:19:34] Speaker 02:
or a lapse in representation under Kyler.

[00:19:37] Speaker 02:
I think in terms of proving a lapse, I don't read the two cases to say that one has to be worse than the other under either standard.

[00:19:48] Speaker 02:
If that makes sense, I don't think Kyler and Strickland- It does.

[00:19:54] Speaker 07:
It makes perfect sense, but it makes it a very hard case for you because deficient performance under Strickland is a tough burden to meet.

[00:20:03] Speaker 02:
Well, deficient performance and causing prejudice.

[00:20:06] Speaker 02:
I mean, yes, I understand in Strickland, it's a high burden.

[00:20:09] Speaker 02:
But in the DC Circuit, all you have to do is show a colorable claim.

[00:20:13] Speaker 02:
You have to show a colorable claim of error and a colorable claim of prejudice.

[00:20:17] Speaker 02:
I mean, again, I think it's referred to as a standard practice in DC.

[00:20:21] Speaker 02:
It's Rashad, Paul, Mohammed.

[00:20:25] Speaker 02:
Go ahead.

[00:20:25] Speaker 07:
Sorry, Your Honor.

[00:20:29] Speaker 07:
No.

[00:20:29] Speaker 07:
I get the point.

[00:20:30] Speaker 07:
I get the point that if it's a close question, you win in this procedural posture, win in the sense of get a remand.

[00:20:39] Speaker 07:
But I think we're just trying to understand conceptually how Kyler works in a case like this.

[00:20:48] Speaker 02:
Sure.

[00:20:48] Speaker 02:
And I realized there's not a lot of law in the DC Circuit on Kyler claims on remand.

[00:20:54] Speaker 02:
I mean, I know there's the McGill case where

[00:20:59] Speaker 02:
defendant or the DC circuit did remand on both conflict claims and ineffective assistance claims.

[00:21:05] Speaker 02:
And there's the Taylor case remanded a conflict claim applying, you know, again, what's a liberal and effective assistance standard in the DC circuit for remand.

[00:21:17] Speaker 01:
Ms.

[00:21:17] Speaker 01:
Schmidt, though, but part of showing that there's a colorable claim in a Kyler type situation involves showing that there's some connection between the Council's alleged conflict and the strategy that they pursued, right, or the mistakes.

[00:21:35] Speaker 01:
And I'm not sure that you've drawn out what that connection is in a colorable way.

[00:21:41] Speaker 02:
Great.

[00:21:42] Speaker 02:
So one thing I do want to make sure is clear for the record.

[00:21:44] Speaker 02:
I mean, the trial court found there was a conflict.

[00:21:46] Speaker 02:
And I understand not even the government is challenging that on appeal.

[00:21:50] Speaker 02:
We're agreed there was a conflict.

[00:21:52] Speaker 02:
The question is- What's the connection between that conflict?

[00:21:55] Speaker 02:
Yes, exactly.

[00:21:56] Speaker 02:
But that's where, again, I think that's where a hearing is required.

[00:22:01] Speaker 02:
I mean, we just don't have the record at this point.

[00:22:06] Speaker 02:
that we don't have the record at this point to be able to litigate that fully.

[00:22:12] Speaker 02:
And that's why Mr. Samuels is here asking for remand under again, but it's a pretty liberal standard in the DC circuit.

[00:22:18] Speaker 07:
What would you show other than the timeline of, you're saying one fact you need to know is what, when the lawyer

[00:22:31] Speaker 07:
knew about his daughter's progress with the U.S.

[00:22:36] Speaker 07:
Attorney's Office?

[00:22:37] Speaker 02:
Correct.

[00:22:38] Speaker 02:
That's at least one important fact we would need to know.

[00:22:42] Speaker 02:
And our position here is that we've identified three errors, but yes, the question is the timing of, go ahead.

[00:22:49] Speaker 07:
So suppose let's take the most favorable assumption for you, which is that the lawyer knew about

[00:23:01] Speaker 07:
knew about his daughter's situation before any of the lapses that you claim.

[00:23:09] Speaker 07:
What else would you, what else would you try to probe?

[00:23:14] Speaker 07:
Like, let's spot you that one, then what else?

[00:23:17] Speaker 07:
This isn't, I mean, in a typical Strickland situation, you would ask the lawyer,

[00:23:28] Speaker 07:
Why did you make this tactical judgment or that?

[00:23:31] Speaker 07:
Was there a reason why you withheld the argument?

[00:23:34] Speaker 07:
Is that the kind of inquiry you want?

[00:23:38] Speaker 07:
I mean, presumably the lawyer's never gonna say, oh, I didn't make this argument because I was embarrassed for my daughter.

[00:23:47] Speaker 07:
Like what you're probing is Strickland prejudice.

[00:23:55] Speaker 07:
I don't know how you probe

[00:23:57] Speaker 07:
You know Kyler causation did did the conflict cause the lapse?

[00:24:03] Speaker 02:
Well a couple of things I mean a hearing we are also asking for a hearing on Strickland and Infective assistance, right?

[00:24:09] Speaker 02:
Because that is the inquiry doesn't just end if you don't prove the causal link, but yes You're on your books Kyler is a little more Correct.

[00:24:20] Speaker 02:
It's yes.

[00:24:20] Speaker 02:
It's odd so actually the

[00:24:23] Speaker 02:
Cases that the district court cited in its order finding a conflict lay out some things that could be explored in a hearing on remand.

[00:24:30] Speaker 02:
I think the Croken case talks about submitting even at minimum written testimony from the child about their process of applying, like what they recall about when the other lawyer found out, whether there are any discussions about the case.

[00:24:50] Speaker 02:
And then to your, you mentioned the obviously yes, trial counsel would be asked questions about whether or not the decision was strategic.

[00:25:00] Speaker 02:
But I think you would also wanna ask questions about the relationship discussions with the daughter about the case.

[00:25:13] Speaker 02:
I mean, I think those are just basic facts that should be explored on remand and the cases the district

[00:25:20] Speaker 02:
court-cited support that.

[00:25:24] Speaker 07:
Okay, any other questions from my colleagues?

[00:25:26] Speaker 06:
Can I ask just one?

[00:25:28] Speaker 06:
Ms.

[00:25:28] Speaker 06:
Schmidt, what do I do if I don't think that there was a potential conflict?

[00:25:35] Speaker 02:
So then you would, well, if you don't think that there was a potential conflict?

[00:25:40] Speaker 06:
Right, I mean, you noted that the government in this case didn't go out of its way to strongly contest

[00:25:47] Speaker 06:
your position that there was a potential conflict.

[00:25:52] Speaker 06:
If I think that, nevertheless, there was no potential conflict here, what do I do with that?

[00:26:01] Speaker 02:
Well, a couple of things.

[00:26:02] Speaker 02:
I mean, one, that still leaves the Strickland question, right?

[00:26:06] Speaker 02:
But to the point about the conflict, I mean, I think that, again, there wasn't a lot of case law out there on this issue.

[00:26:13] Speaker 02:
I think because the

[00:26:16] Speaker 02:
The disclosure requirement is not onerous at all.

[00:26:19] Speaker 02:
It's pretty easily done.

[00:26:22] Speaker 02:
And the fact that this didn't happen here, I think, was shocking to the trial court from the record.

[00:26:29] Speaker 02:
And then the trial court ultimately found that, yes, this was a conflict.

[00:26:34] Speaker 02:
And the cases that were out there supported that, as did, as we briefed below, the ethics opinions in DC also.

[00:26:43] Speaker 02:
also supported finding a conflict.

[00:26:44] Speaker 02:
But if your honor has specific questions about why you think there may not have been a potential conflict, I'm happy to address those.

[00:26:52] Speaker 06:
Well, my question is more, assume that I don't think there was a potential conflict.

[00:26:58] Speaker 06:
I know you disagree with that.

[00:27:00] Speaker 06:
Does that affect this court?

[00:27:03] Speaker 06:
Should that affect my analysis or should I say,

[00:27:07] Speaker 06:
Well, the district court concluded that there was a potential conflict.

[00:27:10] Speaker 06:
The government doesn't contest that there was a potential conflict.

[00:27:14] Speaker 06:
It's appropriate for this court to therefore proceed on the assumption that there was a potential conflict.

[00:27:22] Speaker 02:
Yes, I think that's appropriate for this.

[00:27:24] Speaker 06:
Tell me why you think that's appropriate.

[00:27:26] Speaker 02:
Well, because it's a finding of the court, of the district court.

[00:27:32] Speaker 06:
Why is this court not in a position to

[00:27:36] Speaker 06:
disagree with that finding of the court?

[00:27:42] Speaker 06:
Or are we?

[00:27:43] Speaker 02:
Maybe we are.

[00:27:46] Speaker 02:
I'm not sure.

[00:27:47] Speaker 02:
I mean, I don't think that this court should.

[00:27:51] Speaker 02:
I think there's a clear record below of why there was a conflict.

[00:27:57] Speaker 02:
And again, here, the disclosure requirement's not onerous.

[00:28:03] Speaker 02:
there's a right under the Sixth Amendment to conflict-free counsel that needs to be taken seriously.

[00:28:08] Speaker 02:
And when you have a situation where a lawyer's child is applying for a job, and it's clearly under our DC professional ethics rules, it's clearly a personal interest conflict.

[00:28:23] Speaker 07:
The situation of an adult child living under a separate roof is imputed to the parent.

[00:28:33] Speaker 02:
I think it's slightly different from the imputed.

[00:28:36] Speaker 02:
So the issue here about the conflict.

[00:28:40] Speaker 07:
Maybe right, but like what's popping in my head is for purposes of financial disclosure rules.

[00:28:47] Speaker 07:
What stock my grown children have when they're on their own doesn't matter.

[00:28:54] Speaker 07:
I don't need to know about that.

[00:28:55] Speaker 07:
It's not a conflict for me.

[00:28:57] Speaker 02:
Well, I think it can all depend.

[00:29:00] Speaker 02:
I mean, it's a very fact-based analysis, the relationship between the lawyer, what the case involves.

[00:29:07] Speaker 02:
I think there are different factors that can come into play.

[00:29:10] Speaker 02:
Here, the rule says that if the lawyer has an interest that would be adverse to his clients, he needs to disclose that.

[00:29:22] Speaker 02:
And again, there isn't a ton of law out there, but to the extent there was, it's consistently been held that if a child, even an adult child is applying and been hired by the office that's prosecuting your client in a criminal case, you need to disclose that to your client.

[00:29:40] Speaker 02:
And I mean, I know you mentioned the separate, living under separate roofs, I think that goes to the question of the nature of the relationship, right?

[00:29:46] Speaker 02:
And those are the kinds of factual issues that would need to be explored on remand.

[00:29:50] Speaker 01:
Those factual issues, though, seem to go to the question of whether there's a conflict, not necessarily to the question of whether there's a connection between the conflict and the representation.

[00:30:01] Speaker 02:
Well, I don't think that's the case.

[00:30:05] Speaker 02:
I mean, you know, the district court didn't need to consider all those just to find under the ethics rules and the ethics opinions in D.C.

[00:30:11] Speaker 02:
and the and the

[00:30:13] Speaker 02:
court case law that's out there, Koken and Chica from New Jersey, I believe that when you have a situation like this where a child, even an adult child, is applying for and been hired by the office that is trying to put your client in prison, you need to disclose that to your client.

[00:30:31] Speaker 02:
So there's

[00:30:33] Speaker 02:
There is a conflict, but again, the question, but I do think there are separate analyses, but I'm happy to answer more questions about that.

[00:30:41] Speaker 06:
Imagine this hypothetical, a partner at a law firm, there's a partner at a law firm whose parent is a justice on the Supreme Court.

[00:30:54] Speaker 06:
That law firm represents clients before the Supreme Court, although

[00:30:59] Speaker 06:
the partner of the law firm who has a parent in the Supreme Court does not participate in that litigation.

[00:31:04] Speaker 06:
Do you think that that law firm has a potential conflict of interest?

[00:31:09] Speaker 06:
Or do you think that the judge has, the justice has a potential conflict of interest?

[00:31:13] Speaker 02:
So I believe there's a different rule in DC on that than the one that we were discussing, than the one that was at issue below.

[00:31:20] Speaker 02:
I believe that is a rule for 1.8

[00:31:25] Speaker 02:
H, if I'm not mistaken, although I may need to double check that.

[00:31:29] Speaker 02:
But that's a different rule that governs situations when you have the situation you're describing, where you have a judge on one side, and then the child is actually at the law firm.

[00:31:46] Speaker 02:
But that's not the rule.

[00:31:48] Speaker 06:
Certainly, every client has the right to a judge that's not conflicted.

[00:31:52] Speaker 06:
Yes.

[00:31:54] Speaker 06:
stepping back and just kind of big picture, do you think that the judge has a conflict in that hypothetical?

[00:31:59] Speaker 02:
I think the more the core, I think the core analysis is the client has a right to know.

[00:32:04] Speaker 02:
I mean, conflicts can be waived, right?

[00:32:07] Speaker 02:
And that's the problem.

[00:32:08] Speaker 02:
That was the core of the problem that happened here is that the client didn't know the disclosure was never made.

[00:32:13] Speaker 02:
And so the client couldn't waive it.

[00:32:17] Speaker 02:
But I don't know if.

[00:32:18] Speaker 06:
that answered your question, but that's, I mean, assume that, assume that the client represented by the law firm and my hypothetical was not informed about the parent, the parent child relationship.

[00:32:30] Speaker 06:
Do you think that, um, that there was something amiss in that hypothetical?

[00:32:40] Speaker 02:
I would say it seems amiss, but again, I would say that that's a different, that is a different issue than the one that we were.

[00:32:48] Speaker 02:
that we were asked to brief before the district court, and that was before the district court.

[00:32:53] Speaker 07:
Okay, very good.

[00:32:55] Speaker 07:
Anything else, Judge Walker?

[00:32:57] Speaker 07:
No, thanks, Judge Francis.

[00:32:59] Speaker 07:
Okay, we'll give you some time on rebuttal.

[00:33:03] Speaker 02:
Thank you, Your Honor.

[00:33:04] Speaker 07:
Mr. Is it Likar?

[00:33:08] Speaker 07:
It's Likar, your honor.

[00:33:09] Speaker 00:
Mr. Likar, whenever you're ready.

[00:33:11] Speaker 00:
Thank you, your honor.

[00:33:12] Speaker 00:
I intend to argue on behalf of the appellants to joint issue of severance and transference, and then on behalf of Mr. Tucker, his sentencing issue, reserving two minutes for each of those two arguments for rebuttal.

[00:33:27] Speaker 00:
The trial judge, after the mid-trial severance motion, after Mr. Field's testimony,

[00:33:33] Speaker 00:
with admirable restraint, said that he thought Mr. Field's quote might not have been truthful.

[00:33:39] Speaker 00:
My submission to you is that every word out of Mr. Field's mouth, including A and and B, was perjurious.

[00:33:47] Speaker 00:
On top of that, his conduct in the courtroom was obstructionist.

[00:33:51] Speaker 00:
We've laid that out.

[00:33:52] Speaker 00:
What the jury heard, among other things, was Mr. Field's denying ledgers were his and his handwriting, denying texts,

[00:34:00] Speaker 00:
He understood text in each scene.

[00:34:03] Speaker 00:
He didn't understand the meaning.

[00:34:05] Speaker 00:
He accused the prosecutor of a witch hunt.

[00:34:08] Speaker 00:
He said that the prosecution was trying to frame everybody, including his two friends, my client and Ms.

[00:34:15] Speaker 00:
Schmidt's client, because they couldn't find a case against another target, who he thought was the big fish.

[00:34:22] Speaker 00:
He accused the prosecutor of not understanding Black culture.

[00:34:26] Speaker 00:
Under certain circumstances like this, and I'll grant you that severance motions that are successful on appeal are rare, but this is one of them.

[00:34:35] Speaker 00:
The transference effect is real and is tangible.

[00:34:39] Speaker 00:
Let me talk about Mr. Tucker for just a second.

[00:34:42] Speaker 00:
He consisted of two minutes of a 70 minute opening statement by the prosecutor.

[00:34:47] Speaker 00:
He shows up on about 7% of the trial record, not even full pages, but just 7%.

[00:34:55] Speaker 00:
The evidence against Mr. Tucker was, it was, I would say, an acropoid.

[00:35:03] Speaker 00:
Yes, was he accused of having a license to sell drugs?

[00:35:08] Speaker 00:
He was on the scene, but nobody, aside from one sale, nobody ever said, the text messages are not connected with any of his co-appellants.

[00:35:19] Speaker 00:
There's no audio of him talking to the co-appellants.

[00:35:22] Speaker 00:
There are a few videotapes of Mr. Tucker in the presence of Mr. Fields, but there's nothing to substantiate that they're transacting drugs under those circumstances.

[00:35:35] Speaker 00:
So what you had was, if I could submit, it's a Manny case.

[00:35:39] Speaker 00:
It's a Manny case in which you had a marginal co-defendant, and Ms.

[00:35:45] Speaker 00:
Schmidt's client as well,

[00:35:46] Speaker 00:
subsumed within an exceptionally perjurious obstructionist co-defendant, who, if I could borrow a phrase from one of the government's cases, the government talked about, cited a case called United States v. Pierrot, where the obstructionist defendant really was a sidelines cheerleader.

[00:36:04] Speaker 00:
My submission to you is that Jonathan Fields was the master of charmonies and the host.

[00:36:09] Speaker 00:
The government seized on his testimony, liberally, as they rightly should have, at closing argument and in rebuttal.

[00:36:16] Speaker 00:
and hammered home the fact that he had made these, that his testimony was replete with falsehoods.

[00:36:25] Speaker 00:
Under both circumstances, we couldn't, several should have been given, it should have been granted because the reasonable jury could not have compartmentalized the evidence.

[00:36:35] Speaker 00:
It was overwhelming on this, the governance case against Mr. Fields was overwhelming.

[00:36:40] Speaker 00:
The connection to the defendants was somewhat tenuous.

[00:36:44] Speaker 00:
And in these circumstances, the curative instructions could not have saved the day and prevented my client from not receiving a fair trial.

[00:36:53] Speaker 00:
That's what happened in the Martian case.

[00:36:56] Speaker 00:
That's what happened in the McWay case, which I will grant you, Fifth Circuit case, was not a conspiracy prosecution.

[00:37:04] Speaker 00:
But as the Fifth Circuit pointed out, it was tried as if it were a conspiracy prosecution where you have the lead defendant engaging in what I would call in court obstructionism and constant perjurious comments.

[00:37:20] Speaker 00:
It has to have a transference effect on the lesser defendant, particularly lesser defendants of a nature like this.

[00:37:27] Speaker 00:
I'll address the sentencing issue.

[00:37:31] Speaker 07:
Before you do that on severance.

[00:37:34] Speaker 00:
Yes.

[00:37:35] Speaker 07:
Those are all fair points, but one consideration cutting the other way is that issue with fields came up.

[00:37:49] Speaker 07:
What day 11 or 12 of trial and the asking a lot to

[00:37:59] Speaker 07:
start from scratch when something happens, rather than try to mitigate the prejudice, give you free rein on closing to train your fire on fields, give you cautionary and limiting instructions and such.

[00:38:22] Speaker 07:
Why isn't that at least a reasonable exercise of discretion in a pretty tough circumstance here?

[00:38:30] Speaker 00:
I will concede to you it was a tough circumstance, but a curative instruction didn't save a day in McQuay, and it didn't save a day in Manning, and it couldn't have here.

[00:38:40] Speaker 00:
Even free rein would not have saved the day because the defendants, first of all, the prosecutor elicited from Fields, one of the Fields' few truthful statements that he had

[00:38:52] Speaker 00:
that he was friends and grew up with the defendants.

[00:38:56] Speaker 00:
So Wright, the prosecutor, did that for legitimate reason.

[00:38:59] Speaker 00:
He wanted to draw up a connection.

[00:39:01] Speaker 00:
You would have difficulties as a jury compartmentalizing and of course to recognize that there are circumstances, this is one of them,

[00:39:10] Speaker 00:
where you have lesser defendants, far lesser defendants, whose case can't be the prejudice to whose case cannot be resurrected by curative instructions or by giving counsel opportunity to argue.

[00:39:25] Speaker 00:
What are you gonna argue, Barry?

[00:39:27] Speaker 00:
The jury has saw with their own eyes that, for lack of a better term, you'll excuse the slang expression, the homie is sitting up there and just lying through his teeth.

[00:39:38] Speaker 00:
constantly and then acting out in the courtroom, how's the jury going to compartmentalize?

[00:39:44] Speaker 00:
They might make the effort, but there's a subliminal transference effect.

[00:39:47] Speaker 00:
And that's what the court, that's what this court said in Martin.

[00:39:50] Speaker 00:
You have to be careful for that.

[00:39:52] Speaker 00:
It's not, it happens.

[00:39:55] Speaker 00:
Martin was a conspiracy trial and it was a successful severance appeal, notwithstanding the fact that they went ahead and tried to hold case.

[00:40:05] Speaker 00:
So the fact of the matter is they shouldn't have tried the whole case against Boydian.

[00:40:09] Speaker 00:
They should have retried the case here insofar as Mr. Tucker and Mr. Samuels were concerned.

[00:40:18] Speaker 00:
Are there any other questions?

[00:40:19] Speaker 00:
I'm happy to answer on the seventh floor in terms of sentencing.

[00:40:24] Speaker 00:
Okay, in terms of sentencing, I want to be very fit a point.

[00:40:30] Speaker 00:
What the law of sentencing tells us is we shouldn't make unreasonable extrapolations.

[00:40:35] Speaker 00:
And the district judge, who did an admirable job otherwise in the case, made a mistake.

[00:40:42] Speaker 00:
He made a mistake in methodology.

[00:40:44] Speaker 00:
And the mistake that he made was assuming from one sale, one sale of half a gram of heroin, that there were three sales a week made from

[00:40:54] Speaker 00:
five, three sales a week for 30 weeks at a conspiracy.

[00:40:58] Speaker 00:
I think that's empirically unfounded that in government doesn't make decisions based on such.

[00:41:04] Speaker 07:
Even though they know Tucker is regularly at the barbershop.

[00:41:10] Speaker 00:
Well, let's talk about that.

[00:41:12] Speaker 00:
He is in the area, Groucho is at the barbershop.

[00:41:15] Speaker 00:
although how close is he to the barbershop?

[00:41:17] Speaker 00:
They placed him coming downstairs one time with any critical gesture.

[00:41:22] Speaker 00:
What is Tucker selling?

[00:41:24] Speaker 00:
That's the key to this case.

[00:41:26] Speaker 00:
There's no audio of what he's selling.

[00:41:29] Speaker 00:
There's no text of what he's selling.

[00:41:31] Speaker 00:
The government tries to claim that the district claims that the texts are more significant than they are.

[00:41:38] Speaker 00:
The district judge said, I can't figure out what those texts are all about.

[00:41:41] Speaker 00:
Clearly they're drug-related activity, but what's the drug?

[00:41:45] Speaker 00:
There's no confession, unlike the government's cases.

[00:41:49] Speaker 00:
There's no seizures.

[00:41:51] Speaker 00:
There is nothing, literally nothing in the records to substantiate this extrapolation.

[00:41:57] Speaker 00:
And what the law teaches us from this court's decision, the Stover, for Sepulveda, for Rivera-Maldonado, which are First Circuit cases cited in our brief, and Kilbree, the courts have an obligation

[00:42:10] Speaker 00:
to be very careful in making extrapolations because it causes, if you over extrapolate, if you make an unfounded assumption, it ratchets up a defendant's exposure dramatically.

[00:42:22] Speaker 00:
And that's what happened here.

[00:42:24] Speaker 00:
So I- Sure.

[00:42:25] Speaker 06:
Mr. Lacar, I have a question that's similar to one of the questions I asked Ms.

[00:42:31] Speaker 06:
Schmidt.

[00:42:34] Speaker 06:
Assume I agree with you that the district judge made a mistake in sentencing.

[00:42:40] Speaker 06:
I assume that I think the mistake was that the district judge chose not to apply the career offender enhancement, which would have put the guidelines range between 210 months and 20 years.

[00:42:55] Speaker 06:
Your client got five years.

[00:42:58] Speaker 06:
Do you think that that issue is before this court?

[00:43:04] Speaker 00:
That's a terrific question.

[00:43:05] Speaker 00:
The answer is, I think it is not.

[00:43:06] Speaker 00:
The government didn't cross appeal it and didn't claim it.

[00:43:10] Speaker 06:
So I think there's some force to that conclusion.

[00:43:14] Speaker 06:
And I candidly admit, I probably leaned a little bit toward that conclusion.

[00:43:20] Speaker 06:
But the counter argument to that would be that you did, through your appeal, put before this court the question of whether or not Mr. Tucker's sentence was a lawful sentence or not.

[00:43:32] Speaker 06:
And why does that not open the door to all questions regarding

[00:43:40] Speaker 06:
the appropriateness of Mr. Tucker's sentence?

[00:43:44] Speaker 00:
I think the door is open to the extent that the parties have briefed and addressed the issues that were raised as to the drug methodology and as to the issue of harmless error.

[00:43:56] Speaker 00:
But the district judge's decision apropos of a career offender guideline and feeling that and correctly concluding that it overstated

[00:44:04] Speaker 00:
the case, that wasn't appealed by the government.

[00:44:07] Speaker 00:
I mean, if you were going to take it up here unilaterally, you would have to say that's an issue of law.

[00:44:16] Speaker 00:
But in fact, the district judge saw it in a different way.

[00:44:19] Speaker 00:
The district judge saw it as a question of fact and judicial discretion.

[00:44:22] Speaker 00:
It hasn't been briefed.

[00:44:24] Speaker 00:
If you were to now say, in this case, Judge Walker, that we're going to take a fresh look at it when it wasn't briefed on appeal, can you imagine what's going to happen in every other appeal that comes up before you where a party didn't brief an issue?

[00:44:39] Speaker 00:
They're going to say, well, look at that case.

[00:44:41] Speaker 00:
They got the rate to get a second government got to get a second bite out of it.

[00:44:44] Speaker 06:
Is the reason that we can't

[00:44:46] Speaker 06:
take it up that the government didn't cross appeal or is the reason that it hasn't been briefed?

[00:44:51] Speaker 06:
Because if it's the reason that it hasn't been briefed, that's a problem that the court is now in a position to solve by just requesting supplemental briefing.

[00:45:02] Speaker 00:
We didn't raise it in a brief.

[00:45:03] Speaker 00:
We didn't raise the issue of whether or not Mr. Fields was properly determined not to be a career offender.

[00:45:12] Speaker 00:
That wasn't part of our appeal.

[00:45:14] Speaker 00:
Our appeal was very narrow.

[00:45:16] Speaker 00:
Our appeal was this, the methodology was wrong.

[00:45:19] Speaker 00:
The extrapolation is incorrect.

[00:45:21] Speaker 00:
And the government's response was, well, the methodology is fine and it's harmless error.

[00:45:27] Speaker 00:
And that's what was briefed.

[00:45:31] Speaker 06:
Very good.

[00:45:31] Speaker 06:
That's helpful.

[00:45:33] Speaker 00:
I have no further, I reserve the balance of my time unless anybody has any questions, which I'm happy to respond to.

[00:45:39] Speaker 07:
Dr. Rao.

[00:45:41] Speaker 07:
Thank you.

[00:45:41] Speaker 07:
All right.

[00:45:43] Speaker 07:
Thank you, council.

[00:45:44] Speaker 07:
We'll hear from the government now.

[00:45:48] Speaker 04:
Thank you, Your Honor.

[00:45:48] Speaker 04:
Good morning, and may it please the court, Dan Lenners for United States.

[00:45:53] Speaker 04:
I'm happy to address the defendant's arguments in any order that would be helpful to the court and to any depth that the court would like.

[00:46:02] Speaker 04:
But unless the court wants to direct me to an argument, I'll just go in the same order.

[00:46:07] Speaker 07:
Why don't we presumptively go roughly in the order in which they were presented?

[00:46:13] Speaker 04:
Yes, Your Honor.

[00:46:14] Speaker 04:
Thank you.

[00:46:15] Speaker 04:
The first argument the defendants raised was Fields' right to self-representation.

[00:46:19] Speaker 04:
I read the record differently than Mr. Rosenzweig.

[00:46:23] Speaker 04:
It does not appear to me that Judge Mehta misunderstood the scope of the defendant's right to represent himself when it first raises it during trial.

[00:46:34] Speaker 04:
When this issue first came up, Judge Mehta, who's an experienced judge,

[00:46:41] Speaker 04:
who is an experienced defense attorney, recognized that Fields did and did not have a Sixth Amendment right, that timeliness was an issue.

[00:46:51] Speaker 04:
That accurately describes the right of self-representation, which is sharply curtailed when a defendant first raises it after trial has begun.

[00:47:02] Speaker 04:
And in his balancing of the reasons

[00:47:07] Speaker 04:
He was exercising his discretion, not to allow fields to begin to represent himself mid trial.

[00:47:14] Speaker 04:
He once again recognize that he had to take into account fields his rights, but balance them against all of the other considerations Mr learners can I ask you a question about that balancing.

[00:47:25] Speaker 01:
Most of the cases talk about, you know, the right balanced against the prejudice to the defendant.

[00:47:32] Speaker 01:
You know, here the district judge also considered the prejudice to the co-defendants.

[00:47:37] Speaker 01:
And I'm wondering if that is a permissible consideration for the district judge to take into account.

[00:47:43] Speaker 01:
I mean, given that the Sixth Amendment right as an individual right, can we balance that right against the rights of other individuals?

[00:47:52] Speaker 01:
Is that a permissible type of balancing in this context?

[00:47:57] Speaker 04:
I believe it is, Your Honor, because I believe it goes to the question of the disruption of the trial.

[00:48:03] Speaker 04:
That a defendant who's representing himself and who might be prejudicing his co-defendants by the questions he asks or the witnesses he calls is going to inherently disrupt the trial because the judge and everyone else is going to have to be on their toes to constantly

[00:48:20] Speaker 04:
stop lines of questioning, to interrupt answers, and to otherwise interject themselves into the process to make sure that this defendant feels is imprejudicing his co-defendants.

[00:48:32] Speaker 04:
So I do think it's part and parcel of disruption to the trial for the judge to weigh those two considerations.

[00:48:38] Speaker 01:
And you think that's true only after the trial has begun.

[00:48:41] Speaker 01:
Do you think it would be permissible to balance that type of consideration before trial has begun?

[00:48:48] Speaker 04:
The before the trial has begun a defendant does not have an absolute right to represent himself, the, you know, the Supreme Court made clear infrared itself and in subsequent cases that even then the right is not absolute, but there I think that.

[00:49:04] Speaker 04:
severance would be a much more appropriate response to a defendant who wants to proceed pro se as opposed to mid trial when you're already a week into trial have already had a week of evidence that

[00:49:19] Speaker 04:
Severance there is no longer as palatable a solution to this problem.

[00:49:25] Speaker 04:
So I do think that the judge, you know, I'm not as familiar with Ferretta in the cases that say what a court is supposed to look at pre-trial, but it seems clear that once trial has begun, the judge has broad discretion to deny a defendant the right to start pro se mid-trial.

[00:49:45] Speaker 04:
And as we noted in our brief, I was unable to find a single case

[00:49:49] Speaker 04:
in which a court of appeals found the judicial court abused its discretion by denying a mid-trial request for a defendant to proceed pro se.

[00:50:00] Speaker 04:
And the circumstances here certainly don't show an abuse of discretion, even if the judge misunderstood the nature of the right.

[00:50:12] Speaker 07:
Yeah, so are there cases

[00:50:16] Speaker 07:
equating the scope of the statutory and the constitutional right in this situation when it's asserted mid-trial or addressing one way or the other the question whether they would be the same or different.

[00:50:38] Speaker 04:
Not that I've seen.

[00:50:39] Speaker 04:
As I said, Your Honor, I read Judge Mata saying- No, I understand.

[00:50:43] Speaker 04:
That's your first line of argument.

[00:50:45] Speaker 04:
My second line of argument is endority.

[00:50:48] Speaker 07:
Another argument in your quiver, which seems plausible to me, is if everyone agrees that it's a qualified right, if asserted mid-trial, and the judge gets discretion to balance,

[00:51:07] Speaker 07:
What difference does it make whether you call it a statutory right or a Sixth Amendment right?

[00:51:12] Speaker 04:
Yes, and I believe we made that argument as well.

[00:51:15] Speaker 04:
In Doherty, this court called the statutory right a fundamental right.

[00:51:19] Speaker 04:
It talked about its history as being one of the first things enacted by the first Congress.

[00:51:24] Speaker 04:
I think it was the day before the Sixth Amendment came up.

[00:51:27] Speaker 04:
And it talked about this history, and when the Supreme Court read this court's description of the statutory right in in Florida it said it was intimating its constitutional nature.

[00:51:38] Speaker 04:
Ultimately and already this court said we don't have to decide whether it's constitutional, because the statutory right is fundamental.

[00:51:46] Speaker 04:
And Judge Mata read Doherty.

[00:51:48] Speaker 04:
He read Doherty into the record.

[00:51:50] Speaker 04:
So regardless of whether he had some misunderstanding of whether it was merely statutory or a Sixth Amendment right at the time he made his decision, he clearly understood that it was a fundamental right, that it was a weighty right, and that he had to balance that weighty right regardless of its source against Mr.

[00:52:11] Speaker 04:
against the disruption to the trial and the other factors that balance and go into the abuse of discretion standard.

[00:52:19] Speaker 04:
As to the Fourth Amendment stop,

[00:52:22] Speaker 04:
The defense has provided no basis for this court to second guess Judge Mehta's credibility finding after hearing the officers testify in person.

[00:52:34] Speaker 04:
This court, I'm not aware of any case in which it overruled a district court's credibility finding.

[00:52:41] Speaker 04:
In Delaney, it suggested that it would have to be, the testimony would have to be exceedingly improbable

[00:52:49] Speaker 04:
and either contradicted by empirical evidence or there's such a clear contradiction between witness testimony that the district court would air by crediting one of them.

[00:52:59] Speaker 04:
None of those circumstances exist here and thus there's no basis to reverse the court's credibility finding or its denial of Fields' motion to suppress.

[00:53:12] Speaker 04:
As for the Samuel's conflict issue,

[00:53:16] Speaker 04:
I understand the Kyler standard to have three elements, a potential division of loyalties, a link or causal connection to an adverse effect on the attorney's representation.

[00:53:35] Speaker 04:
The focus of our argument

[00:53:37] Speaker 07:
We're talking about the second and the third.

[00:53:41] Speaker 07:
You haven't contested the first.

[00:53:44] Speaker 04:
We have not contested for purposes of appeal the first.

[00:53:51] Speaker 06:
Why not?

[00:53:54] Speaker 04:
Your honor, we made an internal judgment that we would

[00:54:01] Speaker 04:
argue as to the third issue, that even assuming that for purposes of this appeal that this was a conflict, that the adverse impact on Mr. Conte's representation that Samuels identified were not plausible alternative defense strategies.

[00:54:17] Speaker 04:
We did challenge, we did argue below that there was no conflict.

[00:54:22] Speaker 04:
that she was briefed before Judge Mehta, he ruled against the government.

[00:54:28] Speaker 04:
And we have not proffered that here today as an alternative basis for this court.

[00:54:33] Speaker 06:
So you don't concede that there was a potential conflict, correct?

[00:54:37] Speaker 04:
We don't concede that, Your Honor.

[00:54:38] Speaker 04:
And in fact, we think that were this court to remand to Judge Mehta and for him to order a new trial, that we might still be able to appeal

[00:54:49] Speaker 04:
that ruling as it's kind of effectively interlocutory at this point, but we aren't.

[00:54:55] Speaker 06:
No, please finish your sentence, sorry.

[00:54:56] Speaker 04:
I was just going to say we aren't today arguing it as an alternative basis for affirmance.

[00:55:02] Speaker 06:
I think in my hypothetical about the law firm and the parent who's a judge,

[00:55:09] Speaker 06:
I think that there's no potential conflict there and I don't think that that law firm has a duty to disclose to its clients that the child of a judge is a partner in the law firm.

[00:55:22] Speaker 06:
Do you agree with me about that?

[00:55:26] Speaker 04:
Sitting here today, Your Honor, it's really hard for me.

[00:55:29] Speaker 04:
My instinct is to agree with you, but that instinct is not rooted anywhere in the law or in the code of professional ethics.

[00:55:36] Speaker 04:
I'm not an ethics expert.

[00:55:38] Speaker 04:
I'm not an expert in conflicts.

[00:55:40] Speaker 04:
I was very much focused in my research on this case.

[00:55:44] Speaker 06:
Let me shift to Kyler a little bit.

[00:55:47] Speaker 06:
Micken seems to suggest that Kyler might not apply in all conflicts cases.

[00:55:53] Speaker 06:
Do you agree that it calls into question whether Kyler applies in all conflict cases?

[00:55:59] Speaker 04:
Absolutely, Your Honor.

[00:56:01] Speaker 04:
That's what Justice Scalia said, joined by four members of the court.

[00:56:04] Speaker 04:
They said that issue is not before the court today.

[00:56:07] Speaker 04:
And that was on the prejudice prom.

[00:56:09] Speaker 04:
They said whether Kyler's lower prejudice showing applies to all conflicts is not something the court decides today.

[00:56:18] Speaker 04:
They noted that the courts of appeals had unblinkingly applied it.

[00:56:22] Speaker 04:
But they didn't resolve that question because it wasn't before them at that time.

[00:56:27] Speaker 07:
You have.

[00:56:29] Speaker 07:
Just one quick thought on this.

[00:56:32] Speaker 07:
You haven't bracketed prejudice as element four in this appeal, right?

[00:56:42] Speaker 07:
You're arguing the deficient performance as related back to the conflict.

[00:56:49] Speaker 07:
You're not arguing that we should ignore, as you would in a Strickland case,

[00:56:57] Speaker 07:
that we should just ignore the deficient performance because it didn't cause any prejudice?

[00:57:04] Speaker 04:
So I think our argument has been there can be no prejudice because there is no deficient performance.

[00:57:11] Speaker 04:
And that's why we didn't address prejudice separately.

[00:57:13] Speaker 04:
But we haven't argued, as Judge Walker suggested, that

[00:57:18] Speaker 04:
The court should follow Mickens suggestion and treat the typical Strickland prejudice as applying to conflicts where there's no concurrent representation.

[00:57:31] Speaker 04:
That's what Mickens talked about it said Tyler was multiple concurrent representation prejudice.

[00:57:37] Speaker 04:
it inured to that situation and it said courts had since applied that sort of minimal prejudice showing unblinkingly we have not argued today that this is the case in which this court should take up that suggestion.

[00:57:53] Speaker 07:
So focusing on LAPS, what's your view on

[00:58:02] Speaker 07:
Is lapse under Kyler the same thing as deficient performance under Strickland or is it something less?

[00:58:15] Speaker 04:
As I read the cases, it's something less, Your Honor.

[00:58:20] Speaker 04:
How much less?

[00:58:21] Speaker 07:
I assume it's something more than just, you know, not being Clarence Darrow.

[00:58:29] Speaker 04:
Yes, Your Honor, as I understand the standard as it's been applied by virtually every other circuit.

[00:58:37] Speaker 04:
They've said, you know, we don't understand what actual lapse in representation or adversely affected performance for Kyler means.

[00:58:47] Speaker 04:
So we're gonna try to define that.

[00:58:48] Speaker 04:
And virtually every circuit, as I understand it, has said the defense has to identify a plausible alternative defense strategy that the defense attorney did not follow.

[00:59:01] Speaker 04:
The 10th circuit has said,

[00:59:03] Speaker 04:
A specific and seemingly valid or genuine alternative strategy or tactic that was that was available to defense counsel as the standard for We will lapse in representation or prejudice or whatever you want to call it.

[00:59:18] Speaker 04:
And so that's the standard we've applied in our brief.

[00:59:22] Speaker 04:
to argue that the things that the defense identifies were not plausible alternative defense strategies.

[00:59:28] Speaker 04:
Some of them weren't even alternative defense strategies.

[00:59:31] Speaker 04:
For example, defense counsel did ask for a multiple conspiracy and instruction.

[00:59:36] Speaker 04:
The district court had an independent duty to evaluate whether it should give that instruction when the defense had asked for it.

[00:59:43] Speaker 04:
They simply say the defense should have argued harder for it.

[00:59:46] Speaker 04:
That's not an alternative defense strategy.

[00:59:50] Speaker 04:
As for as for the link, I do want to be clear.

[00:59:53] Speaker 04:
We do not think that the defense has proven a link, but they've not had the opportunity to do that pursuant to an agreement that the parties entered before Mr. Samuels was sentenced

[01:00:08] Speaker 04:
We agreed that the government agreed and stipulated that Mr. Samuels could proceed to sentencing and take this appeal without prejudice to his ability to raise the conflict issue later.

[01:00:20] Speaker 04:
My understanding is that that, pursuant to that agreement, we cannot argue and are not arguing on appeal, we're not faulting Samuels for failing to prove that link.

[01:00:32] Speaker 04:
If the court disagrees as to the effect on representation, we believe he's in.

[01:00:39] Speaker 04:
So your only argument is no lapse?

[01:00:43] Speaker 04:
On appeal, yes, Your Honor.

[01:00:47] Speaker 04:
I understand our stipulation below to preclude us.

[01:00:52] Speaker 07:
I have a concern about the stipulation and it's just gone up substantially in light of what you said.

[01:00:59] Speaker 07:
We have cases

[01:01:02] Speaker 07:
that say notwithstanding our normal excuse of preservation requirements for ineffective assistance claims, if the defendant gets a new counsel at trial,

[01:01:29] Speaker 07:
and that council has an adequate opportunity to raise the ineffective assistance claim, whether it's Strickland or Kyler, there's a preservation obligation.

[01:01:42] Speaker 07:
And this business of you agree that you won't preserve something the way you're supposed to preserve something and then come here and ask us to give you a remand because there was a, by agreement, you know, you can't agree to change our preservation rules.

[01:02:01] Speaker 04:
Your honor, I'm aware of those cases.

[01:02:03] Speaker 04:
I'm aware of your honors concurrence and Sitzman.

[01:02:05] Speaker 04:
I briefed this issue multiple times.

[01:02:10] Speaker 04:
It's a pet issue of mine.

[01:02:12] Speaker 04:
I didn't see that being implicated here.

[01:02:15] Speaker 04:
I didn't see that being implicated here and let me explain why.

[01:02:20] Speaker 04:
The judge made to appointed Ms.

[01:02:23] Speaker 04:
Schmidt and her partner as Mr. Samuel's counsel

[01:02:28] Speaker 04:
for sentencing purposes and to raise this conflict issue.

[01:02:33] Speaker 04:
He said, please only brief the existence of a conflict.

[01:02:38] Speaker 04:
Do not address prejudice.

[01:02:41] Speaker 04:
So the parties only briefed the existence of the conflict.

[01:02:45] Speaker 04:
Judge Mehta then ruled against the government, said, I find a conflict.

[01:02:49] Speaker 04:
Now the parties need to brief prejudice.

[01:02:52] Speaker 04:
It's at that point that Samuels and the government agreed that he could

[01:02:58] Speaker 04:
proceed to sentencing without waiving his ability to show the requisite link and prejudice.

[01:03:08] Speaker 04:
And so we feel bound by that agreement not to argue a lack of link.

[01:03:14] Speaker 04:
If the court has independent concerns, I don't see a Durango problem, but maybe your honor does.

[01:03:19] Speaker 07:
But why, if you have a new,

[01:03:26] Speaker 07:
conflict-free counsel in place and the proceeding is still in the district court.

[01:03:34] Speaker 07:
I understand it was midstream and as I understand it there was some concern about not letting the briefing on the prejudice issue slow down the case, the other parts of the case.

[01:03:53] Speaker 07:
I get all that but

[01:03:55] Speaker 07:
Um, why couldn't you, why couldn't the council have done what I thought council should have done in Sitzman just on a post trial motion raise the issue on a post trial motion.

[01:04:11] Speaker 04:
They could have, and they did.

[01:04:14] Speaker 04:
Judge Mehta restricted their first post-trial motion to addressing only the existence of the conflict.

[01:04:19] Speaker 04:
That was all post-sentencing?

[01:04:24] Speaker 04:
No, it was pre-sentencing.

[01:04:26] Speaker 04:
The sentencing had been scheduled.

[01:04:27] Speaker 04:
Judge Mehta discovered the potential conflict.

[01:04:30] Speaker 04:
He appointed new counsel, Ms.

[01:04:33] Speaker 04:
Schmidt and her partner, and he ordered new counsel to brief only the existence of the conflict, not prejudice.

[01:04:41] Speaker 04:
he then found the existence of a conflict and it was ready to have the parties address prejudice when the parties entered a stipulation to proceed to sentencing.

[01:04:53] Speaker 07:
So why shouldn't we think of that as the parties trying to erase

[01:05:05] Speaker 07:
a preservation obligation that the defendant has under Durango.

[01:05:13] Speaker 07:
He could have pursued, I mean, what Ms.

[01:05:17] Speaker 07:
Schmidt's saying here quite forcefully is, look, all I want is a remand for fact-finding.

[01:05:25] Speaker 07:
And that's a preferred thing in ineffective assistance cases where you have to develop the facts.

[01:05:34] Speaker 07:
I mean, you had that opportunity in the district court before the case came up here with the new council.

[01:05:43] Speaker 04:
I agree, your honor.

[01:05:45] Speaker 04:
As I noted in the brief, this isn't an unusual procedural posture.

[01:05:49] Speaker 04:
I would have made a Durango argument except for our stipulation.

[01:05:54] Speaker 04:
I don't feel as the government, given that we agreed that-

[01:06:01] Speaker 07:
respect your turning square corners once you have the stipulation.

[01:06:06] Speaker 07:
I'm questioning why you would have done that and whether the parties have authority to contract away preservation obligations and then come to us and say please remand for a hearing that should have happened

[01:06:24] Speaker 07:
before the appeal was taken?

[01:06:27] Speaker 04:
Sitting here today, Your Honor, I'm not able to answer that question.

[01:06:30] Speaker 07:
I appreciate your candor.

[01:06:34] Speaker 04:
So as to the link, we do think that there are two ways the court can show a link.

[01:06:38] Speaker 04:
The court asked Ms.

[01:06:40] Speaker 04:
Schmitt quite a few questions about this.

[01:06:42] Speaker 04:
One is that there's such inherent tension between the attorney's duties of loyalty that there's necessarily causal connection.

[01:06:53] Speaker 04:
So when an attorney, for example, a defense attorney has also represented the witness,

[01:06:59] Speaker 04:
or is concurrently representing the witness, the court has found sort of that inherent tension.

[01:07:05] Speaker 04:
There's no such inherent tension here.

[01:07:07] Speaker 04:
So then it's because of, they have to show that Mr. Conti failed to take these actions because he wanted to advance his daughter's interests over Mr. Samuel's.

[01:07:21] Speaker 04:
Sorry, this goes to causation.

[01:07:24] Speaker 04:
Yes, your honor.

[01:07:25] Speaker 07:
I was just trying to answer some of the questions.

[01:07:27] Speaker 07:
I thought you said you don't feel able to assert that here and now, given the stipulation.

[01:07:38] Speaker 04:
Yeah, I'm sorry if I lost the court.

[01:07:41] Speaker 04:
I've been trying to discuss the legal standard, not the factual record at this point.

[01:07:45] Speaker 07:
Oh, okay.

[01:07:46] Speaker 07:
This is just how Kyler works.

[01:07:49] Speaker 04:
Yes, the court had quite a few questions for me Schmidt about that and I was trying to give my best answer will let you with that in mind, go ahead.

[01:08:00] Speaker 04:
So, I think there are two ways to prove it.

[01:08:03] Speaker 04:
One is this inherent tension which doesn't exist here and the other is because of causation, Mr.

[01:08:09] Speaker 04:
at the remand hearing were one to occur, Mr. Conte would have to say, yes, I didn't take these actions because I sought to advance my daughter's interests over Mr. Samuel's.

[01:08:22] Speaker 04:
Or he would say, no, I didn't.

[01:08:24] Speaker 04:
And the court would discredit that testimony.

[01:08:27] Speaker 04:
And there are cases in which the courts have suggested that this sort of post hoc testimony is not particularly credible.

[01:08:34] Speaker 04:
Here we think it would be credible, but that has yet to be determined.

[01:08:38] Speaker 04:
We focused our brief on the third issue, which is this plausible alternative defense strategy, which we don't think that Mr. Samuels has shown here.

[01:08:52] Speaker 04:
And thus we think that his sentence can be affirmed without a remand

[01:08:57] Speaker 04:
the judgment can be affirmed without a remand because the three things that Ms.

[01:09:02] Speaker 04:
Schmidt has identified as possible alternative defense strategies, I know they're plausible nor alternative.

[01:09:09] Speaker 07:
And tell me why the third of her three is the multiple conspiracy instruction.

[01:09:18] Speaker 04:
Yeah, sure.

[01:09:19] Speaker 07:
I hear you say that counsel did seek that instruction.

[01:09:27] Speaker 04:
Yes, Your Honor.

[01:09:28] Speaker 07:
I'm not recalling that.

[01:09:30] Speaker 07:
And the only concern, the only performance concern is not arguing it forcefully enough.

[01:09:37] Speaker 04:
They say he should have pointed to specific evidence in the record that would have supported giving such an instruction.

[01:09:43] Speaker 04:
We don't think that evidence actually supports the giving of such an instruction.

[01:09:48] Speaker 07:
Oh, right.

[01:09:50] Speaker 07:
OK, it's coming back to me.

[01:09:51] Speaker 07:
That's the nugget about trying to

[01:09:57] Speaker 07:
expand the business or trying to sell drugs in Virginia?

[01:10:02] Speaker 04:
Yes.

[01:10:03] Speaker 04:
They say, for example, council should have pointed to his post-conspiracy crack sales and crack possession as evidence in favor of a multiple conspiracy instruction.

[01:10:15] Speaker 07:
Why wouldn't that evidence tend to support the argument for a separate conspiracy instruction?

[01:10:24] Speaker 04:
So as I understand the multiple conspiracy case law, it's that there has to be evidence that the jury could find this defendant guilty of a different conspiracy than the one charged.

[01:10:39] Speaker 04:
But the conspiracy charged ended on February 1st, 2018 with with fields arrest and was not charged to have involved crack.

[01:10:49] Speaker 04:
And so pointing to Samuel's post conspiracy crack distribution doesn't in any way tend to show that he was involved in a different conspiracy.

[01:10:59] Speaker 04:
pre-February 1st, 2018 to distribute the drugs charged.

[01:11:05] Speaker 04:
It's just completely separate conduct and the judge recognized that and routinely gave limiting instructions for the purpose, limiting the purpose for which the jury could consider evidence of things that occurred after February 1st versus pre-February 1st, recognizing that that's when the charge conspiracy ended.

[01:11:24] Speaker 07:
Is that because the later evidence is of planning to sell crack in Virginia in the future?

[01:11:36] Speaker 04:
No, it was to prove that he possessed with the intent to distribute the crack found in his house on May 10th, 2018.

[01:11:44] Speaker 04:
So on May 10th, officers conducted a search warrant.

[01:11:47] Speaker 04:
That's when they found the shotgun under Mr. Samuel's bed and 4.2 grams of crack next to the sink.

[01:11:53] Speaker 04:
He was charged with possession with intent to distribute that crack.

[01:11:57] Speaker 04:
And so the evidence post February 1st went to establish that charge.

[01:12:04] Speaker 04:
But the crack was not part of the charged conspiracy?

[01:12:08] Speaker 04:
No, Your Honor, crack was not even charged as part of the conspiracy.

[01:12:10] Speaker 04:
The conspiracy was charged to involve heroin, fentanyl, synthetic marijuana, and maybe, oh, it's suboxone.

[01:12:20] Speaker 07:
I see.

[01:12:20] Speaker 07:
So your theory is instruction or no instruction, the crack evidence wouldn't have tended to

[01:12:33] Speaker 07:
wouldn't have tended to implicate him in the charged conspiracy.

[01:12:37] Speaker 04:
Correct.

[01:12:38] Speaker 04:
And it didn't establish that he was involved in a different conspiracy than the one charged during the conspiracy period.

[01:12:46] Speaker 04:
That's helpful.

[01:12:49] Speaker 04:
I'm happy to address Samuel's other plausible alternative defense strategies, but if the court has no questions, I'll turn to Mr. Tucker's arguments.

[01:12:59] Speaker 04:
Okay, go ahead.

[01:13:01] Speaker 04:
So, Mr. Mr. Lecar argues that the judge abuse his discretion by failing to sever the trial after fields gave his testimony.

[01:13:11] Speaker 04:
The proof is in the pudding that the jury could and did separate the charges and the defendants it acquitted Mr right of narcotics conspiracy.

[01:13:22] Speaker 04:
It acquitted fields himself of possessing the firearms that were found in the upstairs kitchen and the barbershop.

[01:13:30] Speaker 04:
And it found that Mr. Samuels and Mr. Tucker were not responsible for various drugs charged in the conspiracy.

[01:13:38] Speaker 04:
And it acquitted Mr. Samuels of the 924C possession of a firearm and furtherance of a drug trafficking offense crime.

[01:13:46] Speaker 04:
So it's clear on this record that the jury, in fact, followed its instructions

[01:13:52] Speaker 04:
and that those instructions suffice to cure any prejudice from Mr. Field's, you know, obstreperous and untruthful testimony, but testimony that didn't actually implicate his defendant, his co-defendants in any meaningful fashion.

[01:14:08] Speaker 07:
That's a good fact for you, but if we look at this ex ante,

[01:14:14] Speaker 07:
And I understand it's a tough burden for the defendant, but boy, the contrast between Fields and the other two, both in terms of what they're actually doing, the degree of evidence against them and the behavior at trial seems pretty stark.

[01:14:36] Speaker 04:
I have two answers, Your Honor.

[01:14:38] Speaker 04:
One, this court doesn't look at it.

[01:14:41] Speaker 04:
ex ante, has repeatedly used the fact of acquittals to support the district court's determination.

[01:14:49] Speaker 04:
And is one consideration among many.

[01:14:53] Speaker 04:
Yes.

[01:14:53] Speaker 04:
Two, you know, fields as testimony, the Supreme Court in Zafiro and this court following Zafiro has said severance is not necessary when one defendant points the finger at his other, his co-defendant says he's the one who did it.

[01:15:08] Speaker 04:
Fields didn't even go that far.

[01:15:10] Speaker 04:
He may have been difficult, and he may have lied, but he lied about himself.

[01:15:14] Speaker 04:
His testimony touched on his co-defense a little, if at all.

[01:15:19] Speaker 04:
His counsel elicited that they were friends.

[01:15:21] Speaker 04:
He said they were good friends.

[01:15:22] Speaker 04:
And that's about the extent of it.

[01:15:24] Speaker 04:
And the evidence overwhelmingly established that.

[01:15:26] Speaker 04:
I mean, there were photos of all of them together at various points.

[01:15:31] Speaker 04:
There were photos on Samuel's phone of Fields.

[01:15:33] Speaker 07:
Yeah, but didn't he say,

[01:15:37] Speaker 07:
I think it was Samuel's as opposed to Tucker, but as to one of them, he said that the person's presence in the drug law reflected auto insurance, right?

[01:15:53] Speaker 04:
Yes, that's what he said.

[01:15:56] Speaker 07:
So if he's showing himself to be a serial perjurer,

[01:16:04] Speaker 07:
and then he gives that nugget.

[01:16:07] Speaker 07:
How do we think of that?

[01:16:10] Speaker 07:
Does that tend to, does that have any spillover prejudice for Samuels by sort of showing that they're all in cahoots to perjure as well as to sell the drugs?

[01:16:28] Speaker 04:
not spill over prejudice to such a great degree that the district court abused its discretion by not severing the cases.

[01:16:37] Speaker 04:
It gave the correct instructions that this court has approved of in McGill and Moore and other cases.

[01:16:44] Speaker 04:
And as I said, the proof is in the pudding that if Fields was a serial perjurer, he denied possession of the guns

[01:16:51] Speaker 04:
in the kitchen and the upstairs of the barbershop, the jury didn't hold that against him.

[01:16:56] Speaker 04:
It didn't say, oh, he must have been lying about that, too.

[01:16:59] Speaker 04:
He must be responsible for the guns.

[01:17:02] Speaker 04:
And so I just don't think.

[01:17:04] Speaker 04:
And again, if a defendant saying it was his co-defendant who did it isn't enough to establish the necessity of severance.

[01:17:11] Speaker 04:
I don't see how the minimal amount feels.

[01:17:14] Speaker 04:
When he says he didn't do it, that's not enough.

[01:17:18] Speaker 04:
Yes, Your Honor.

[01:17:19] Speaker 04:
And then as to sentencing, the sentencing guidelines require the disher court to estimate the amount of drugs involved.

[01:17:29] Speaker 04:
The disher court does so under a preponderance of the evidence standard.

[01:17:33] Speaker 04:
And it comes to this court clothed as presumptively correct.

[01:17:39] Speaker 04:
And so nothing that Mr. Tucker has argued with regard to the disher courts

[01:17:45] Speaker 04:
A drug quantity calculation here is sufficient to establish that the district court clearly erred or to overcome that presumption of correctness.

[01:17:55] Speaker 04:
The evidence overwhelmingly established Tucker's involvement in heroin sales, his being at the barbershop constantly selling drugs as if he had a license to do so, and the completed sale to the confidential informant of 0.58 grams of heroin

[01:18:14] Speaker 04:
was a sufficient and factually correct basis for the disher court to conduct the estimate that it was required to under the sentencing guidelines.

[01:18:24] Speaker 04:
And I would note the disher court could have been wrong by 20% and still came to the same guideline calculation.

[01:18:30] Speaker 04:
The relevant band starts at 60 grams of heroin.

[01:18:34] Speaker 07:
The 0.5 grams per sale is supported by the size of the sale to the confidential informant.

[01:18:44] Speaker 07:
Yes, your honor.

[01:18:45] Speaker 07:
Is there anything else?

[01:18:46] Speaker 07:
Any other completed sales?

[01:18:49] Speaker 04:
Any other evidence supporting that?

[01:18:51] Speaker 04:
That's the only evidence supporting the amount involved in any particular sale, other than the fact that as the Warren affidavit shows, one time the confidential informant went to the barbershop to attempt to buy heroin from Tucker.

[01:19:08] Speaker 04:
Tucker wasn't there.

[01:19:10] Speaker 04:
He was referred to Venable as Lonel's man, El's guy, and Venable sold him 1.1 grams of heroin.

[01:19:19] Speaker 04:
So that further supports the quantities involved in these street level transactions.

[01:19:25] Speaker 04:
And how about the five sales per week?

[01:19:29] Speaker 04:
The court made what it called was a very conservative estimate based upon the amount of time that Tucker was outside the barbershop selling drugs.

[01:19:39] Speaker 04:
The evidence overwhelmingly supports that he was constantly there.

[01:19:43] Speaker 04:
This court has said that when courts do this sort of estimate, they have to be conservative one sale a day.

[01:19:50] Speaker 04:
not even each day of the week is a very conservative estimate as shown by the quantities for which Venable and Clark were responsible.

[01:20:02] Speaker 04:
Clark was responsible for between 150 and 300 grams of heroin as a street level dealer of heroin involved in the same conspiracy.

[01:20:12] Speaker 04:
Venable, I believe, pleaded guilty to 360 grams of heroin.

[01:20:16] Speaker 04:
And so the district court

[01:20:19] Speaker 04:
quite correctly, engage in a very conservative estimate to reach only 75 grams of heroin for Mr. Tucker.

[01:20:28] Speaker 07:
Okay.

[01:20:28] Speaker 04:
Thank you.

[01:20:30] Speaker 07:
Joe Turow, anything else?

[01:20:32] Speaker 07:
Joe Walker?

[01:20:34] Speaker 07:
No.

[01:20:34] Speaker 07:
Okay.

[01:20:34] Speaker 07:
Thank you, Mr. Leonard.

[01:20:37] Speaker 07:
Let's move on to Ritbottle.

[01:20:41] Speaker 07:
Mr. Rosenzweig.

[01:20:44] Speaker 05:
Thank you, Your Honor.

[01:20:46] Speaker 05:
A few very quick points in bottle.

[01:20:48] Speaker 05:
First, Judge Walker, to answer your question, ECF filing 69 was the motion to suppress the barbershop evidence and page nine, section three B identifies the November 20th traffic stop as part of the grounds of the affidavit that was being challenged.

[01:21:07] Speaker 05:
To be fair, they did not say in hack their but fruits of the poison is true but I think that that filing was sufficient to preserve the issue.

[01:21:15] Speaker 05:
If you if you get to reach that second point also on the issue of the traffic stop.

[01:21:26] Speaker 05:
that there was a lack of empirical evidence to reject officer Haskett's credibility.

[01:21:33] Speaker 05:
I would point the court to government exhibit 10 from that hearing.

[01:21:37] Speaker 05:
It's an overhead visual of the CVS parking lot where the stop occurred.

[01:21:42] Speaker 05:
And you will see that in order to traverse the distance from where he entered the parking lot to where he parked, Mr. Fields traveled no more than 150 yards and made five separate turns, making it

[01:21:55] Speaker 05:
empirically, I would think, doubtful that he could have sped through the parking lot at the speed that the officer suggested.

[01:22:02] Speaker 05:
A third point, turning back to the question of self-representation and to answer your point, Judge Katzis,

[01:22:10] Speaker 05:
There are indeed a number of issues where statutory rights and constitutional rights are repetitive of each other.

[01:22:18] Speaker 05:
Off the top of my head, I can think of privacy provisions, self-incrimination provisions, and due process provisions where the statutory rights are, I would think, inferior.

[01:22:27] Speaker 05:
And to take Judge Walker's point, there are other statutory provisions which are superior, I think, to constitutional rights.

[01:22:34] Speaker 05:
We do not have any case law here suggesting that the statutory right

[01:22:38] Speaker 05:
relied upon by Judge Maeda was in fact superior to or more effective than the constitutional for rhetoric.

[01:22:46] Speaker 05:
And the fact that no court has ever so held is suggestive, I think, of the fact that that is not the case.

[01:22:53] Speaker 05:
My final point

[01:22:55] Speaker 05:
on this would be simply that while Mr. Lerner's correctly refers to Judge Maeda's initial statement that was somewhat ambiguous as to his understanding of the constitutional nature of the self-representation right at issue here, I think that we have to take that in context and realize that that was the first thing that he said and that after he went off the bench, took some time to study it and came back, he came back with a far more definitive view.

[01:23:23] Speaker 05:
As I started this argument with,

[01:23:25] Speaker 05:
Point blank said Mr. Fields does not have a Sixth Amendment right to self-representation without ambiguity, without the he does and he doesn't that preceded that.

[01:23:35] Speaker 05:
And he then mischaracterized or characterized his understanding of authority as rejecting the constitutional nature of the right.

[01:23:45] Speaker 05:
That we submit is per se legal error and per se abuse of discretion.

[01:23:49] Speaker 05:
And thus, from our point of view, mandates

[01:23:52] Speaker 05:
a reversal and a remand for a new trial at which Mr. Fields may choose to represent himself and presumably Judge Maeda will manage that problem as he did the severance problem.

[01:24:05] Speaker 05:
Thank you, Your Honor.

[01:24:07] Speaker 07:
Questions from my colleagues?

[01:24:09] Speaker 07:
Okay.

[01:24:10] Speaker 07:
Thank you, Mr. Rosenzweig.

[01:24:12] Speaker 07:
Ms.

[01:24:12] Speaker 07:
Schmidt, let me give you a shot at the question I had for

[01:24:20] Speaker 07:
government, which I haven't given you a chance to answer yet, which is if I thought that the new council had an obligation to preserve the ineffective assistance issue under Durango, what is it that lets the parties stipulate away our preservation law?

[01:24:47] Speaker 02:
Thank you, Your Honor.

[01:24:49] Speaker 02:
So I am not the expert on Durango that Mr. Leonard says, inform the court that he is.

[01:24:57] Speaker 02:
I mean, I just and I will answer your question.

[01:25:02] Speaker 02:
But, you know, first of all, I would, you know, in addition to joining into in Mr. Likar's arguments that he's made.

[01:25:08] Speaker 02:
As to severance I mean I also agree with the points that he's made about the fact that the government has waved these issues, and that, and the concerns that Mr Lecar raised about about.

[01:25:22] Speaker 02:
proceeding on an issue that the government's already waived.

[01:25:25] Speaker 07:
Yeah, that's fair.

[01:25:26] Speaker 07:
And that's normally the end of the matter if the upshot of the waiver is that the federal courts do less work than they otherwise might have, and we don't reach a forfeited issue.

[01:25:41] Speaker 07:
But here, you're asking us to do more work, which is remand for a hearing that should have happened before you took the appeal.

[01:25:51] Speaker 02:
Well, and so I'll talk about that piece of it.

[01:25:54] Speaker 02:
So as I believe Mr. Leonard's noted, my colleague and I were appointed after the trial on the eve of sentencing, which was when the district court found out about the conflict.

[01:26:05] Speaker 02:
I mean, my understanding is that the district court acted as quickly as it could.

[01:26:11] Speaker 02:
By the time that the district court found there was a conflict, the parties convened.

[01:26:16] Speaker 02:
There was a status conference.

[01:26:18] Speaker 02:
There were conversations with the court between the government and defense counsel.

[01:26:21] Speaker 02:
the district court was was only willing to give 30 days to the parties to not just brief the issue but I mean to have a hearing to prepare for a hearing and and litigate it which you know again because you know we were new you know we were new counsel we were not trial counsel this was a three or four week trial with thousands of pages of transcripts that would have taken

[01:26:46] Speaker 02:
30 days was not an adequate time to investigate and prepare for that.

[01:26:52] Speaker 02:
And in the meantime, and also, I mean, the court and the court did not disagree with that.

[01:26:56] Speaker 02:
The district court, though, expressed, and I believe this is this is laid out in the stipulation that the parties entered into the district court felt that it could not give more than 30 days without materially prejudicing Mr. Samuel's rights on appeal.

[01:27:10] Speaker 02:
And in the midst of all that, the government had indicated- Why is that?

[01:27:16] Speaker 07:
Why is- Why would taking whatever time was necessary to tie up the conflict issue, materially prejudice?

[01:27:26] Speaker 07:
I mean, usually the district court ties up all loose ends as quickly as it can, and then there's an appeal.

[01:27:32] Speaker 07:
Nobody sought expedition, I don't think.

[01:27:37] Speaker 02:
Sure.

[01:27:39] Speaker 02:
Well, the at that point, I believe the the trial had happened in March or April of 2019.

[01:27:44] Speaker 02:
The other defendants had already been sentenced and were proceeding to appeal.

[01:27:51] Speaker 02:
Mr. Samuels and I have been sentenced.

[01:27:54] Speaker 02:
And I think this is also discussed in the transcript of the status conference.

[01:27:58] Speaker 02:
But I think it just to answer your question about why it would prejudice him.

[01:28:03] Speaker 02:
I mean, if Mr. Samuels took additional time to litigate this one issue,

[01:28:08] Speaker 02:
And then, you know, he would potentially prejudice his ability to litigate other issues that he might have raised on appeal, for example, severance issue that we're raising jointly.

[01:28:17] Speaker 07:
Sorry, is that because his appeal would have happened too late to be consolidated with the other ones that were out in front of it.

[01:28:25] Speaker 07:
Correct.

[01:28:27] Speaker 02:
Okay, I got it.

[01:28:29] Speaker 02:
So there was that issue.

[01:28:30] Speaker 02:
And then on top of that, the government council had indicated to defense counsel that if if we were to litigate it and Mr. Samuels were to prevail on this, you know, on what Tyler, it was unclear from the record whether the district court would have expanded it to strict land issues as well.

[01:28:48] Speaker 02:
But that also would have taken more time.

[01:28:50] Speaker 02:
But

[01:28:51] Speaker 02:
you know, regardless, the government's counsel had indicated we will appeal this if we lose.

[01:28:57] Speaker 02:
And in the meantime, Mr. Samuels, who had not been sentenced, was, you know, was in jail.

[01:29:01] Speaker 02:
And I think this is also discussed in the stipulation.

[01:29:04] Speaker 02:
There was a detainer against Mr. Samuels in the Commonwealth of Virginia.

[01:29:08] Speaker 02:
So Mr. Samuels was potentially looking at spending a significantly more, a significantly longer amount of time incarcerated than he would if he otherwise proceeded to sentencing.

[01:29:20] Speaker 02:
and then chosen to get this an appeal.

[01:29:22] Speaker 02:
And I also want to note just on a related note.

[01:29:25] Speaker 02:
So I think Mr. Leonard said that the court had ordered a briefing on prejudice.

[01:29:33] Speaker 02:
I think that's true, but the court's order also said, you know, we need to identify.

[01:29:42] Speaker 02:
But we haven't, you know, I haven't considered whether or not there were actual errors.

[01:29:47] Speaker 02:
in the representation.

[01:29:48] Speaker 02:
So to do that again also would have involved some additional investigation and just time to litigate.

[01:29:56] Speaker 02:
And here on appeal, we've identified three errors that we think did rise to the level of a lapse.

[01:30:02] Speaker 02:
And what we're asking for now is a remand to address the additional causation issue under Kyler and alternatively a prejudice issue under Strickland.

[01:30:13] Speaker 07:
Any questions from my colleagues?

[01:30:16] Speaker 02:
Okay, I had a few additional points on quickly.

[01:30:20] Speaker 07:
You're well over.

[01:30:22] Speaker 02:
Yes, understood.

[01:30:23] Speaker 02:
On the on the hypothetical, Your Honor Judge Walker raised, I've gone back and looked at some of the rules.

[01:30:30] Speaker 02:
I believe the question really comes down to whether a reasonable client wants to know.

[01:30:34] Speaker 02:
I think I said that.

[01:30:35] Speaker 02:
But on the on the hypothetical of a attorney in a firm is at a firm that's litigating cases in front of a particular judge, I

[01:30:45] Speaker 02:
Do you think that would be a personal interest conflict as to the judge's child?

[01:30:53] Speaker 02:
It would not be imputed to the firm, but the judge's child would have to disclose it if there was a question of whether a reasonable client would want to know.

[01:31:03] Speaker 02:
So.

[01:31:03] Speaker 06:
But doesn't that cut pretty hard against you then?

[01:31:06] Speaker 06:
Because here, the prosecutor's daughter, sorry, the defense attorney's daughter was not

[01:31:16] Speaker 06:
the prosecutor on this case?

[01:31:20] Speaker 02:
Well, again, here, no, the standard is, I mean, it's a personal interest conflict.

[01:31:27] Speaker 02:
What matters is just she was applying for a job.

[01:31:30] Speaker 02:
And the rule says if a lawyer has a personal interest, has a personal interest that would affect his ability to represent his client, he needs to disclose it to the client.

[01:31:41] Speaker 02:
And the standard is whether a reasonable client would want to know about

[01:31:45] Speaker 02:
that interest.

[01:31:46] Speaker 02:
And here, the district court found that based on the case law, based on the DC ethics opinions, yes, that's a conflict that a reasonable client would want to know about, and it should have been disclosed.

[01:31:56] Speaker 02:
Okay, thank you.

[01:31:59] Speaker 02:
And just a couple of quick additional points.

[01:32:04] Speaker 02:
I just wanted to talk briefly about this issue of Mickens versus Kyler.

[01:32:08] Speaker 02:
So I believe I understand Mr. Leonard's

[01:32:12] Speaker 02:
position and what the dissent has said about not applying the Kyler standard to cases like this or trying to limit the reach of Kyler.

[01:32:22] Speaker 02:
I think the precedent that is available in the DC Circuit cuts against that.

[01:32:26] Speaker 02:
I mean, I know that Kyler says, yes, if you're dealing with a case where there was dual or concurrent representation, that's a per se conflict.

[01:32:35] Speaker 02:
We're not arguing here that this was a per se conflict.

[01:32:37] Speaker 02:
We agree that Mr. Samuels needs to prove

[01:32:41] Speaker 02:
causation.

[01:32:41] Speaker 02:
And if you look at the DC Circuit cases that address conflict, I mean, they address and remand cases that don't just involve, you know, a dual or concurrent representation.

[01:32:51] Speaker 02:
The Taylor case involved the remand where it appeared that the client potentially had an advice of counsel defensive trial they could have used and instead that same counsel advised him to plead guilty.

[01:33:03] Speaker 02:
And so the district court remanded it.

[01:33:04] Speaker 02:
So I think I would not read Kyler as narrowly as

[01:33:09] Speaker 02:
the government is arguing.

[01:33:10] Speaker 02:
And I think the DC circuit precedent supports that.

[01:33:14] Speaker 02:
And then give you one, go ahead.

[01:33:16] Speaker 07:
Take your best, take your best shot of what you have left.

[01:33:20] Speaker 02:
Yes.

[01:33:20] Speaker 02:
And on the, uh, the multiple conspiracies argument, I would say, I just want to, I do want to clarify a couple of things because I think the government mischaracterizes the record, uh, on some important points.

[01:33:31] Speaker 02:
So it's not just that Mr, that, uh, that Mr. Connie failed.

[01:33:35] Speaker 02:
to sufficiently argue it.

[01:33:37] Speaker 02:
It's at the district court directly asked him a question and or made a comment that said, he said, I'm going to give this multiple conspiracy instruction to Mr. Tucker, because I think the evidence is there because there's evidence that he was interacting with unidentified individuals outside the conspiracy.

[01:33:53] Speaker 02:
And I don't see that evidence.

[01:33:54] Speaker 02:
The court was saying, I don't see that evidence here for your client, Mr. Connie.

[01:33:59] Speaker 02:
And Mr. Samuel's lawyer said,

[01:34:01] Speaker 02:
Well, that's correct, but that was not correct.

[01:34:03] Speaker 02:
It was a misrepresentation of the evidence.

[01:34:05] Speaker 02:
I mean, there was a text and a text from within the charged conspiracy period that the government's talking about from 2017 where the government pointed to it, had it introduced a trial where it said, Mr. Samuel's texted an unidentified individual and said, the guy I will go through will give 3.0 for 150, so let your client know that.

[01:34:25] Speaker 02:
Again, that was within the period of the charged conspiracy.

[01:34:27] Speaker 02:
And second on the testimony from Mr. Clark.

[01:34:31] Speaker 07:
Sorry, what do you say to the government's position that that was just that wouldn't have been within the conspiracy anyway, because it's a different drug.

[01:34:43] Speaker 02:
Well, I mean, the problem was that it led to it led to your confusion.

[01:34:48] Speaker 02:
I mean, there was always going to be a risk of that because of the way the government charged and litigated the case against Mr. Samuels, as the government says.

[01:34:55] Speaker 02:
He was charged with possession with intent to distribute cocaine and he was charged with participation in this conspiracy to distribute heroin.

[01:35:03] Speaker 02:
And that text again, you know, it's, I know the government said it was about coded, you know, it's coded message for drug transactions.

[01:35:09] Speaker 02:
It's unclear.

[01:35:10] Speaker 02:
It's just unclear what he's, which drug we're referring to, but it is within the period of the conspiracy.

[01:35:18] Speaker 03:
Okay.

[01:35:18] Speaker 03:
Okay.

[01:35:18] Speaker 02:
Okay.

[01:35:19] Speaker 02:
Thank you.

[01:35:19] Speaker 02:
And then I was going to talk really quickly about the Mr. Clark's testimony.

[01:35:24] Speaker 02:
just that I think the record is not as clear as the government characterizes that.

[01:35:28] Speaker 02:
And we disagree that the judge's instruction would have cured that.

[01:35:34] Speaker 02:
I think the instruction was Mr. Samuel's to lose.

[01:35:37] Speaker 02:
And it was a lapse in representation to have led the court to believe that the facts were not there to support it.

[01:35:46] Speaker 07:
All right.

[01:35:46] Speaker 07:
Thank you, Ms.

[01:35:47] Speaker 07:
Schmidt.

[01:35:48] Speaker 02:
Thank you, Your Honor.

[01:35:49] Speaker 00:
Mr. McCarr.

[01:35:50] Speaker 00:
Thank you, Your Honor.

[01:35:52] Speaker 00:
The government's point, apropos of the juries acquitting people of various charges.

[01:35:58] Speaker 00:
I want to focus on Mr. Tucker for a moment.

[01:36:01] Speaker 00:
Where did that heroin come from?

[01:36:03] Speaker 00:
There wasn't any evidence in the record where that heroin came from.

[01:36:05] Speaker 00:
There wasn't any evidence that him dealing with John Jonathan Fields with that heroin.

[01:36:11] Speaker 00:
The photos that the government talks about, of what?

[01:36:14] Speaker 00:
They're ambiguous.

[01:36:16] Speaker 00:
Again, no audio, no cooperator testimony linking my client to any specific sales or any any sales of heroin.

[01:36:26] Speaker 00:
So you have a case, I think a pristine case of transference.

[01:36:30] Speaker 00:
In terms of the government's argument and the sentencing, they say, well, it was presumptively correct.

[01:36:37] Speaker 00:
Well, the methodology isn't presumptively correct.

[01:36:40] Speaker 00:
The methodology should be reviewed de novo.

[01:36:42] Speaker 00:
And here, being there at the barbershop, doing what?

[01:36:46] Speaker 00:
There are no other sales in a record.

[01:36:49] Speaker 00:
The government points to Mr. Venable.

[01:36:52] Speaker 00:
Judge Mehta eschewed any reference to Venable's sales.

[01:36:56] Speaker 00:
He judged Mr. Tucker on what he thought, and I say incorrectly so, Mr. Tucker had sold in the furtherance of a conspiracy.

[01:37:04] Speaker 06:
What's your theory for what Tucker was doing at the barbershop every day?

[01:37:10] Speaker 00:
My theory is he's hanging around.

[01:37:12] Speaker 00:
He's got multiple sources of supply.

[01:37:14] Speaker 00:
Remember Judge Walker, he did get a multiple conspiracy instruction.

[01:37:17] Speaker 00:
He's the only one in the case who got that.

[01:37:19] Speaker 00:
So he had multiple sources of supply.

[01:37:21] Speaker 00:
And this is important to note this as well, Your Honor.

[01:37:24] Speaker 00:
He's not up at Barnaby Place or is in Barnaby Street.

[01:37:27] Speaker 00:
I can never get it straight in my own mind, but he's not up there at the retail location.

[01:37:31] Speaker 00:
where a number of those who were charged and others who pled out were said to have been selling retail drugs.

[01:37:38] Speaker 00:
He's a hard-scrabble drug dealer.

[01:37:40] Speaker 00:
I don't know where his sources are from.

[01:37:41] Speaker 00:
That's what Judge Meadow was struggling with as well with the text.

[01:37:45] Speaker 00:
Now, if I could, Judge Walker, I want to circle back to that dialogue you and I had about waiver.

[01:37:52] Speaker 00:
My first statement is I probably should not have used the word waiver.

[01:37:56] Speaker 00:
It's probably more of a forfeiture argument than a waiver, but it's the same effect in the end.

[01:38:01] Speaker 00:
In turn, putting aside the legal niceties.

[01:38:05] Speaker 00:
I want to deal with this on a practical terms.

[01:38:08] Speaker 00:
This is the Court of Appeals in general, we give respect to the institutional role of the district judge, who's got the closer feel that sentencing.

[01:38:16] Speaker 00:
So I'm not asking you to be a social scientist.

[01:38:20] Speaker 00:
I'm not asking any of you to tolerate anything that Lionel Tucker did.

[01:38:23] Speaker 00:
I want to concede you, he's a small-scale drug dealer.

[01:38:27] Speaker 00:
But in an age of overcrowding or dramatic over-sentencing, Judge Mediff saw this.

[01:38:33] Speaker 00:
And the government, I think subliminally, in not cross-appealing, recognized as well.

[01:38:38] Speaker 00:
This is a career offender guidelines.

[01:38:41] Speaker 00:
This court doesn't need to reach out for that where the parties didn't address it.

[01:38:44] Speaker 00:
It wasn't briefed and nobody addressed it till it came up here.

[01:38:49] Speaker 00:
Judge Metta felt that the career offender guidelines themselves offended his sense of justice.

[01:38:57] Speaker 00:
And I tip my hat to him because they do.

[01:38:59] Speaker 00:
What is Lynel Tucker other than a hardscrabble small scale drug dealer?

[01:39:04] Speaker 00:
He's not a career offender.

[01:39:07] Speaker 00:
And I think the court should respect this.

[01:39:14] Speaker 00:
These cases, I have no further observations.

[01:39:17] Speaker 03:
All right, thank you all for very argument.

[01:39:21] Speaker 07:
The case is submitted.