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case number 21 to 3002 United States of America versus Aurelio Canoflores, also known as Anki, also known as E.O.

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at Balance.

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Ms.

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West for the at Balance, Mr. Boone for Diablo.

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Good morning, Ms.

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West, whenever you're ready.

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Good morning, Your Honor.

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So you'll get on a west deck.

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I will gather for Donald Flores.

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Well, how lucky will explain is the castle.

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I was today's completely.

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Now imagine if you put your honors that you were facing a life sentence in a country you have no familiarity with.

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You've never been to this country, the United States, and the only person between you and that life sentence is your lawyer.

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There's no one translating for you during

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your conversations with your lawyer.

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And you can't even pantomime or give hand signals to your lawyer because of the formality of the courtroom.

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And what we have here is a life sentence because of the age of Mr. Conductor is when he was sentenced more than 50 years old and he got a 35 year sentence.

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That's life.

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What could be more obvious than a client having the right to communicate with his lawyer during trial?

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The sixth amendment demands that.

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So he did not raise this issue on his direct appeal, did he?

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No, Your Honor.

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So on his 2255, he complains of several things.

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And I gather your position is essentially there was no discretion left for the district court.

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It had to appoint a translator

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for Mr. Flores at all times, regardless of what arrangements his lawyer may have had, what arrangements he appeared to go along with throughout the trial and throughout his over 50 meetings with his counsel and his counsel's assistant.

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So my question at this point is,

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What has he planned in the way of prejudice?

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What defense was not raised and it would have made a difference?

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What witness was not interviewed and would it have made a difference?

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All those sorts of things.

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And I didn't see anything, and maybe I missed it, suggesting there was prejudice to your Mr.

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to the appellant in the outcome of the trial?

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And maybe you could help me there.

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Yes, Judge Rogers.

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First, with regard to your first issue, it's not our position that Mr. Connell-Flores needed a court-certified translator throughout the whole time.

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I think that that would have been easy for Mr. Gilbert to do and I address that.

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But our position is that he needed someone to translate his communications with Mr. Gilbert during the course of the trial.

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Well, Mr. Gilbert in testifying offered his explanation as to why he deemed it most important for him to pay attention to what was going on in the courtroom in terms of the witnesses who were appearing as well as any instructions from the district court.

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And here the district court credited that as

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an understandable and reasonable strategy given the elaborate system that Mr. Gilbert had set up for communicating and no indication now of actual prejudice to the outcome of the case.

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And that's why in my first question, I posed it as I thought

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You were either suggesting that the district court's findings about reasonable strategy and no prejudice were clearly erroneous use of discretion.

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And I thought, well, if that's the case, then what's left except to say that you are arguing that error was in failure to a point in a translator.

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I know your honor.

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What we say is that there is a prejudice that was suffered because Mr. Cano Flores and his lawyer could not communicate during the course of the trial.

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And I agree with the court, what you just said that the district court credited the fact that he wanted to pay attention during witness testimony.

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But I outlined in my brief, the many times that trial lawyers often communicate with their clients,

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before court, during the lunch hour, after court, or even on the weekends and evenings at the jail.

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But it's not a contextual decision focused on specific prejudice to the defendant in the particular proceeding.

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It's not a general rule that some lawyers do it in some circumstances.

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I think on the appendix on page 18,

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There are specific notes that were taken during the trial on February the 19th of 2013, where comments from Mr. Connell clearly show that there were lies from the witnesses from the stand, and he wanted those lies corrected.

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Attorney said he already knew that was his client's position.

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Well, I didn't have to discuss it during trial, but they planned on a strategy given that Mr. Flores, count Flores was of the view that certain witnesses were not telling the truth.

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Well, there's all you have to have a pretrial plan before you go into trial.

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But how is it that

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everyone who practices law and tries cases knows that no trial goes as planned.

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I'm not saying the pretrial plan was wrong.

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I'm just saying that that plan

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changed when people testified about things that were not in the plan.

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For example, in the record, there's an example of somebody who.

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We would have to find that the testimony given before the district court in this case, or actually the magistrate judge initially, was clearly erroneous, contradicted by the record.

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And I'm asking you to be very specific.

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as to what was the prejudice here.

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I understand that the trial could have been conducted differently.

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And the district court here found that, first of all, it was error for the magistrate judge to presume prejudice.

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And secondly, that there were just vague assertions about prejudice.

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Yes, your honor.

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I would point to just the fact of what I mentioned in the record, but also the fact that a witness lied.

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That is the prejudice.

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And the reason why that's prejudicial is because when a witness is lying on the stand, you

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and there's no cross-examination to contest that lie, the jury is not gonna see that that witness is in fact lying.

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And as this- Well, I know of no such rule, okay, that whenever a witness on cross-examination is shown not to be conforming his or her evidence,

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to some objective evidence that necessarily there has to be a new trial.

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And I don't want to take up any more time here, but I think you know my concern that I'm not aware of the defendant's arguments here about specific precedents.

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Yes, Your Honor.

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We noted in our brief about the

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notes from Mr. Cano Flores that showed specific lies.

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One being in the letter from the jail, appendix page 297.

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He also has an OVO sign.

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And again, on page 279 of the appendix, the jurisdiction and the Estado Toluca talking about jurisdiction, that would have gone to the agent of the

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an agent, a DEA agent who testified about the wiretaps.

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All I'm saying is there's a specific prejudice here because as this court noted in the United States versus Mohammed, a court that you're familiar with, Judge Rogers, in assessing prejudice, the ultimate question is whether

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uh the defendant has shown a reasonable probability that adequate investigation and here it would be communication would have enabled trial counsel to sow sufficient doubt about the witness's credibility to sway even one juror and that's what our argument is if if argument counsel what i'm asking for is where is the evidence to support it and um

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You're saying that, well, witnesses lied.

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Council testified he knew that.

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They prepared the strategy in that light.

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Maybe he should have done more.

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But your client hasn't made these specific arguments.

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That's what I'm trying to grip with, not that you can cite places in the record where your client was saying that this witness lied, that witness lied.

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Well, the evidence, Your Honor, would be in the written notes between Mr. Cano Flores and his lawyer.

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And those notes are gone.

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Those notes were destroyed.

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And not only that, Mr. Gilbert's notes from the trial also gone and destroyed.

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So those communications that would have shown specific prejudice

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Uh, what those lies were about are gone and we don't have the, um, we don't have those to fall back on.

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And those are, um, those are facts that we don't have in front of us to show what the specific prejudice was other than the fact that the witness was in fact line.

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I see my time is up.

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Thank you.

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We'll give you a minute on rebuttal.

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Let's hear from the government.

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It pleased the court under Strickland.

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This court reviews Council's performance deferentially.

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And under that standard, Kano's attorneys acted reasonably in their methods of communicating with Kano and in using Valencia as an interpreter.

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Even if council's performance was deficient, Donald was not prejudice.

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As to communication, Strickland said, this is at page 688 at 466 US, that council actually has several duties in dealing with his clients.

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One is a duty to consult with the client, but he also has a duty to test the government's case.

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And that would include paying close attention

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for the testimony of the government's witnesses so you can prepare an effective cross-examination, especially in a case like this one in which the defendant and the attorneys had agreed that the defense was going to be reasonable doubt.

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The defendant was not going to testify, and there was not going to be an affirmative defense.

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That means that client had

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Ernie has a lot of latitude in balancing the various duties that he has.

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And client consultation is not an absolute duty.

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In Perry v. Leake and in this court in McLaughlin at 164 Federal Third, both those cases upheld reasonable restrictions on a counsel's right to consult with his client during the trial.

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Now, counsel's method of communication with Cano was reasonable in this case.

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Why?

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The defense had

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team, including Valencia, the interpreter, met with Kano 50 times before trial to discuss trial strategy, where they agreed to present the reasonable doubt defense.

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They also agreed that Kano would communicate with Gilbert during the trial by passing him notes.

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And here's what happened during the trial.

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When Kano passed the note to Gilbert, Gilbert would do one of either two things.

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He would either nod to Kano to show that he had received the note,

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but also in other circumstances, he would write something on the note and pass it back to Cano.

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And that's its supplemental appendix 134 and 135.

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As he explained, and that's also on pages 134 and 135, he could understand the notes that Cano passed to him because he had a conversational ability in Spanish.

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During a break in the trial, Gilbert would read Cano's notes, and that's at Supplemental Appendix 524 and 525.

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And then at the end of the day, Hughes, the second attorney, would read Cano's notes or his journals on her way back home.

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And although she did not understand Spanish, she explained that this is at pages 711 and 712 of the Supplemental Appendix,

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that these notes were not literature.

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They basically were notes that described names and numbers, like the amount of drugs or the amount of money.

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As the defense attorney stated, further communication wasn't really necessary in this case because there were no breaking events that Pano had to say to his attorneys, other than to say that he thought that the government's lawyers were lying.

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The defense already knew that they had met with him 50 times before trial.

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They knew what the defense was going to be, and they knew that the government, they were going to test the government's case by showing that the witnesses were liars.

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And of course, the defense attorneys met with Connell at the jail four or five times during the two-week trial, and Valencia met with him also, and she shoveled, using the word that the district court used, shoveled notes back and forth to the attorneys.

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As to Valencia, she was an effective interpreter.

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The district court's finding that she made no substantive errors in translation is not a clearly erroneous finding.

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Even if there was an error in this case, Cano was not prejudiced.

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The test for prejudice in this context is whether he's shown a reasonable probability the result of the trial would have been different under Strickland.

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As to the notes, Gilbert testified that all they said essentially was that Cano thought that the witnesses were liars, but they already knew that.

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And as there's a claim here about kind of wanted to impeach a witness with respect to a roaming claim on direct appeal, this court stated that the phone was sometimes in roaming mode.

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That's at 796 federal third and 86.

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And the calls were properly admitted whether the phone was in roaming mode or not because of this court found the calls were heard in a listening post in the US.

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The presumption of prejudice test doesn't apply here.

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That only applies when there's been a complete denial of counsel

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where council has entirely failed to challenge government's case or whether there's a conflict of interest by council.

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None of those situations exist here.

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So unless there are any further questions, we would ask this court to affirm.

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Thank you.

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I understand judge riders that you want specific examples of how this

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prejudice, Mr. Connell Flores, and then the result of the case would have been different.

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That's what the law requires.

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Yes, Your Honor, I understand.

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The government just stood up and said and also said in their brief that Mr. Gilbert communicated with Mr. Connell Flores with a nod and that Mr. Gilbert, in fact, could understand those notes.

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We disagree with that.

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There's no evidence that Mr. Gilbert could understand those notes because we don't have those notes and could not have challenged that he testified.

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Mr. Gilbert did that.

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He could not communicate any substantive issue with Mr. Connell Flores, such as exec, for example, the roaming that would have been a substantive issue that he could have talked about.

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Um, why as, um, we, we said on direct review that the,

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communications were properly intercepted by agents in Texas.

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That's correct, your honor.

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That's what you held on appeal.

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Um, but that could have been challenged.

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Why would it matter?

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It would matter because it would have been challenged.

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Um, the agent could have been impeached with evidence that in fact the phone was not on roaming.

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And that's something that kind of floors and the record clearly tried to, uh, talk to his lawyer about, but was never able to talk to

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Thank you.

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Finally, I'd like to say, your honor, just briefly, please.

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I'm sorry, sir.

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Just briefly.

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Yes.

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Um, we believe that presumption in this case does apply and that the court's previous, um, cases, Mohammed and Bell, uh, show that presumption would apply in this case.

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Thank you.

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Thank you.

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The case is submitted.