[00:00:00] Speaker 01:
Case number 21-3003, United States of America versus Julian Richardson at balance.

[00:00:08] Speaker 01:
Mr. Kaplan for the at balance.

[00:00:09] Speaker 01:
Mr. Bernie for the atoli.

[00:00:13] Speaker 00:
Good morning, counsel.

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Mr. Kaplan, please proceed when you're ready.

[00:00:22] Speaker 02:
If you please the court, my name is Matthew B. Kaplan.

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I represent Appellant Julian Richardson.

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Your Honor, in our view, there's two principal issues in this case.

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Firstly, whether the sentencing guidelines were properly applied.

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Secondly, whether procedurally this court can reach that issue.

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The government contends that it cannot reach the issue whether the guidelines were properly applied because of the waiver that my client executed prior to his plea.

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In our view, that waiver does not bar this appeal, and that's for two independent reasons.

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Firstly, the court cannot find on this record that Mr. Richardson knowingly, intelligently, voluntarily waived his appellate rights.

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And that is so because the district court not only didn't discuss the plea waiver, but it affirmatively

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misrepresented what was in the plea waiver.

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Specifically, the district court indicated that Mr. Richardson was giving up his appellate rights because of the fact that he was pleading guilty, whereas, of course, that was not accurate.

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He was giving up certain appellate rights because he had agreed to in his plea

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But that's not what he would have understood.

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And the court's precedent indicates that a defendant is entitled to rely on a reasonable understanding of what the trial judge tells him during the sentencing.

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There was no misleading here, was there?

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Respectfully, Your Honor, I think there was.

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Because I think that the trial judge told Mr. Richardson that

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As a result of your pleading guilty, you're giving up all these appellate rights.

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In fact, it wasn't because he was pleading guilty.

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It was because he had entered into a plea agreement.

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He could have simply pled guilty and not have given up those rights.

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I'm not quite understanding how that prejudiced your client.

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the advice that was given by the court, because how is it, even if we take your, even if you take the assumption that what one would naturally construe from the court's statements was that the waiver came about by result of the plea, guilty plea, as opposed to the appeal waiver, how did that end up prejudicing your client?

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Well, Your Honor, it's a material prong of the plea agreement.

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I think specifically the prejudice would be is,

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You know, he had a choice.

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He could have gone before the court, and he could have gone to trial, or he could have simply fled and retained his talent rights.

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And, you know, that was a decision he was entitled to make, and he was unable to make it because he didn't, as far as the record shows, he didn't understand what the plea agreement was.

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Well, what didn't what court told him

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the relevant part of the plea agreement.

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It went into the waiver in the portion you observed in your brief, didn't it?

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I don't think, Your Honor, it explained, I mean, it didn't, the trial court did not explain at all, didn't mention the existence of appellate waiver in the plea agreement.

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And what it said is, I think it said quite clearly, because you're pleading guilty, you're giving up these appellate rights.

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And I think the,

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uh, a reasonable defendant would have understood that anyone who pleads guilty gives up these appellate rights when that was not the case.

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Oh, um, there's a saying is he distracts the plea.

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I'm sorry, your honor.

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So we should strike the plea, send it back.

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start over?

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No, your honor.

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I think what this court has done in a number of cases is when it's found the defect in the plea agreement, it doesn't vacate the plea, but it remains for re sentencing under the proper terms of the.

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Well, you're saying that he's prejudiced by not having had the chance, please.

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Straight up, I guess.

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Uh,

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I'm not sure what she said wasn't adequate because she's playing his guilty plea, but even assuming it's not, I'm still a bit confused as to how he could have been prejudiced by not being told as part of the plea agreement when he had signed the plea agreement that had it in it and had counsel and heard this advice in court.

[00:05:25] Speaker 03:
It's a little hard to follow counsel.

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Your Honor, I think the point is simply that

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You're right, there is a written plea agreement, but the case law in the precedent says it matters a lot.

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You can't just look at the plea agreement.

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You've got to look also at what happened in the hearing and what the trial judge said.

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One other thing I'd like to just mention briefly is, aside from this waiver issue, the plea agreement issue, it's also, in our view, not enforceable because

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It's the result of ineffective assistance.

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Council didn't point out to the trial court.

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I'm not sure again what exactly it is.

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Council didn't do.

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I mean, the date on which your client claims to have ceased criminal activity was actually discussed in court.

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It wasn't just there, but what do you say Council didn't do?

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Well, principally, your honor, what we say council didn't do is the money laundering guidelines are clear.

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You look at, you don't look at the laws as that term is only defined in the sentencing guidelines.

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You look at the amount of funds laundered.

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And I mean, that's what it says.

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And there's a case law that says that what it says is what it means.

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But the, the, the trial court and the pre-sentencing report, all in the government,

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all seem to think that the relevant issue is the loss, as the term is broadly defined in the sentencing guidelines, is what mattered.

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And in our view, trial counsel have an obligation to actually read the sentence.

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See, that's not what it says.

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It says you look at the amount of money laundered.

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If you look at the amount of money laundered,

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you would see at the back portal.

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Now what was actually laundered was less than $550,000, which is a break in the sentencing sentencing guidelines.

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Um, am I right counsel?

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And on that issue, the only decisions that specifically address frozen funds go against your argument on the reading of the guideline.

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I think that's correct, Your Honor, but those are all decisions prior to the clarification of the sentencing guidelines.

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And I think there are newer decisions to say that the guidelines mean what they say if you look at the amount of money laundered.

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And just briefly, I'd point out what happened here is there were two separate schemes.

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One was the fraud scheme.

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As a result of the fraud scheme, fraudsters overseas had money deposited into the account controlled by my client.

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But my client didn't put the money in.

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And as to the $95,000, which would bring that amount over the $550,000, he didn't do anything to that money.

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He never laundered it.

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To do money laundering, you've got to do some type of financial transaction.

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And my client didn't do that.

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Financial transactions, he did, were funds that total, were respective funds, that total less than $550,000.

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If there are no more questions, I'll reserve the remainder of my time for... Okay.

[00:08:52] Speaker 00:
Thank you, Mr. Kaplan.

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We'll hear from the government now, Mr. Burney.

[00:09:01] Speaker 01:
Thank you.

[00:09:02] Speaker 01:
May it please the court, Kevin Burney of the United States.

[00:09:07] Speaker 01:
I'd like to discuss the waiver issue first because that was the bulk of the time that Appellants Council

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bent on and was asked about.

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So first, the waiver here is enforced.

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And it's already been pointed out that Mr. Richardson signed the agreement.

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He's well-educated.

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He's completed two years of college.

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He dated an initial at each page of the agreement.

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And of course, Lee and Jackson has made clear, this course precedent, that we looked at the entire record as to whether a waiver is knowing, intelligent, and voluntary.

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But just on this point in terms of

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this issue that the trial court misrepresented the plea waiver, which I think is appellant's main argument.

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So what the trial court said, and this is JA 18, is that, so do you understand that by pleading guilty, you are not only giving up your right to a trial, but you're giving up your right to appeal.

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And you're not allowed to say, I wasn't properly convicted.

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And then the court says, the only basis that you can appeal

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is if I sentence you to more than the law would permit me to sentence you to, or if your lawyer was ineffective in connection with your sentencing.

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So the top court has essentially laid out two exceptions for Mr. Richardson.

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And both of those exceptions are in the plea waiver.

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The plea waiver, this is JA 46, essentially says that Mr. Richardson is waiving his right to appeal the sentence except

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the extent that the court sentences him to above the statutory maximum.

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The trial court explicitly mentioned that one.

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Or guidelines range determined by the court.

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The court didn't mention that one, but of course he was not sentenced above the guidelines range.

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He was ultimately sentenced below the guidelines range.

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And then the last exception that the plea waiver mentions is that he can appeal on the basis of ineffective assistance of counsel, but not to raise other issues.

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And again, the trial court essentially stated that as well.

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The trial court said that he could appeal on the basis of ineffective assistance of counsel in connection with his sentencing.

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And that's exactly what he's doing on appeal.

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He's saying that his counsel was ineffective in connection with his sentencing.

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So I don't think there's any prejudice at all here.

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And of course we need to look at

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uh, federal criminal procedure 11 H besides there's harmless air.

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We will contain that there is harmless air.

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It's true that the trial judge should not go over the plea waiver explicitly with Mr. Richard.

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But the rights that she outlined are the rights contained in the plea waiver.

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They're the same rights that he's trying to vindicate on appeal.

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And so he really hasn't suffered any prejudice in this situation.

[00:12:01] Speaker 01:
Um,

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But of course, the government also recognizes that there's still the effectiveness of the council issue.

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So he hasn't waived that.

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And I'd like to discuss that a little bit.

[00:12:14] Speaker 03:
Just a minute.

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Are you conceding that the penance and guidelines issue is before us?

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I felt the reason we're talking about the waiver is that that's not encompassed within terms of the waiver.

[00:12:27] Speaker 01:
I think it's before the courts in a different way than appellants wants it to be in front of the court.

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I think essentially wants it to be in front of the court in two different ways.

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First to say this court should reach the merits of whether the guidelines range was calculated.

[00:12:44] Speaker 03:
That depends on him winning the waiver.

[00:12:48] Speaker 01:
That's correct.

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Exactly.

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And our contention is that the court should not get to that.

[00:12:52] Speaker 03:
Right.

[00:12:53] Speaker 01:
Good.

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the court would still have to get to the issue in an indirect way, because he's also alleging that his counsel was ineffective.

[00:13:03] Speaker 03:
Again, we don't actually reach the sentencing issue unless we find the counsel was ineffective, right?

[00:13:11] Speaker 01:
That's correct, Your Honor.

[00:13:12] Speaker 01:
Okay.

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And we would argue that counsel was not inefficient.

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And so, the Appellant's Counsel essentially has two arguments on that.

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The first is the guidelines issue, and that is the defense counsel should have challenged the guidelines calculation.

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But the guidelines calculation was not wrong.

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It's true that you're not supposed to take into account the loss, but that is not what was taken into account here.

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The calculation that was used was the amount of launder of funds exactly as the guidelines requires.

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So I think it's useful to just go over the amounts very briefly.

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It's true that the loss is under $550,000.

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$550,000 is the threshold.

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It's true that the loss is below that.

[00:14:02] Speaker 01:
But the amount received into the money laundering accounts, the fraudulent accounts that were set up by Appellant and his co-conspirator, were over $600,000.

[00:14:16] Speaker 01:
And in fact, the trial court made that explicit finding that's on JA 113.

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The court found that appellant has co-conspirator responsible for laundering over $600,000.

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So the only real dispute here is whether the $95,000 of frozen funds counts.

[00:14:35] Speaker 01:
And of course, we talked this at length in our brief, but it does.

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As the chief judge has pointed out, the only two cases that have decided this issue

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have found that it counts.

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And I think the Appellant's Council is trying to place a lot of emphasis on this amendment that happened in 2001 that somehow changed the ballgame.

[00:14:53] Speaker 01:
But it didn't change the ballgame with regards to this definition.

[00:14:57] Speaker 01:
Even though the definition moved from value of funds to value of laundered funds, there's nothing in those 2001 amendments that narrowed the definition that courts have been using before.

[00:15:08] Speaker 01:
Nor did the Senate Commission express any disfavor towards Tansley or Thompson, these cases that I had decided before.

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There's no evidence that that amendment, the motivation of that amendment was to change the way the courts had calculated

[00:15:23] Speaker 01:
The value of these funds now wander funds, but the court should use the trial court should use that sentence.

[00:15:29] Speaker 00:
Ms.

[00:15:29] Speaker 00:
Bernie can I ask you a question on just the standard that we're applying here so for ineffective assistance purposes are under our decisions.

[00:15:38] Speaker 00:
In normal situations, we remand for resolution of an ineffective assistance claim since in our court, we allow for them to be raised on direct appeal and remanded as opposed to being raised on collateral review as other courts do.

[00:15:49] Speaker 00:
But for our standard to determine whether to remand at all or whether just to reject the claim outright in the first instance in our court, it's the case that we only elect not to remand if there's not even a colorable claim on the performance prompt.

[00:16:04] Speaker 00:
Is that right?

[00:16:06] Speaker 01:
Well, I think this court typically does not remand when the, yes, the evidence below suggests their remand would be unnecessary.

[00:16:18] Speaker 01:
And here we would contend that there is no, there's no need for a remand.

[00:16:23] Speaker 00:
I guess what I'm saying, I mean, I know at some point is whether remand is necessary, but the question is under what standard do we determine necessity?

[00:16:31] Speaker 00:
I don't understand us to be,

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applying effectively in the first instance, to know both standards to decide what the right answer is on the performance prong.

[00:16:42] Speaker 00:
It is that there's not even a colorable claim on performance.

[00:16:46] Speaker 00:
Now, sometimes we've said there's not a colorable claim or we've said it's obvious that there's no prejudice, but I'm just, you've gone through the guidelines issue and there was a lot of pages expended in the briefing on it.

[00:16:56] Speaker 00:
You of course raised the point about the prior decisions exactly on frozen funds.

[00:17:01] Speaker 00:
I'm just trying to understand

[00:17:03] Speaker 00:
How much of an argument does the appellant need to have in order to at least just get a remand, not to win ultimately on effective assistance, but just to get a remand and get a chance to win in front of the district court?

[00:17:14] Speaker 00:
Is it right that as long as they show, as appellant shows, just a colorable argument on the issue, even if we think it's more likely than not a losing one, as long as it's a colorable one, do they get the benefit of remand?

[00:17:30] Speaker 01:
The main case that I've looked at for that, Your Honor, is Sitzman.

[00:17:39] Speaker 01:
Well, and Soto.

[00:17:40] Speaker 01:
And it says there, Soto, for instance, says, however, in some cases, the record is so clear that remand is unnecessary.

[00:17:49] Speaker 01:
And then, in six minutes, when the record clearly shows that the challenged attorney's actions were not deficient, or when the record clearly shows, but I think there needs to be a clear showing that Mr. Richardson was not prejudiced or that his client was not deficient.

[00:18:04] Speaker 01:
And we would argue that there is that clear showing here.

[00:18:06] Speaker 01:
The clear showing on why he wasn't deficient is because a lot of briefing has been spent on this issue, of course.

[00:18:13] Speaker 01:
I would just, and I see my time is running out, but I would just note

[00:18:17] Speaker 01:
whether the funds are included or a very complex issue, which so far again, the cases have gone the way that they are included.

[00:18:26] Speaker 01:
And so I don't think counsel should be faulted for not anticipating this challenge in the law.

[00:18:32] Speaker 01:
The case law to this point has indicated that they should be included.

[00:18:36] Speaker 01:
On the prejudice point, Mr. Richardson got a sentence in the guidelines range that he wants.

[00:18:45] Speaker 01:
He wants a range of 36 to 46 months.

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He got 40 months.

[00:18:50] Speaker 01:
The trial court very downward to make that happen.

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And the trial court went to a very detailed analysis in the sentencing.

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So this was a very thorough sentencing, which you may hear she was imposing this sentence aside from the guidelines.

[00:19:04] Speaker 01:
So even if trial counsel had spoken up, there's really no likelihood that it would have been different.

[00:19:11] Speaker 01:
And I see my time is about to run out or has run out.

[00:19:14] Speaker 01:
So I'm happy to answer any further questions.

[00:19:18] Speaker 01:
But if not, we would ask that this court enforce the waiver and otherwise, thank you.

[00:19:24] Speaker 00:
Thank you, Mr. Bernie.

[00:19:25] Speaker 00:
Mr. Kaplan, I think you had a little bit of time left.

[00:19:28] Speaker 00:
We'll give you around it up to two minutes for a bottle.

[00:19:32] Speaker 02:
Thank you, Your Honor.

[00:19:33] Speaker 02:
And I'll be brief.

[00:19:36] Speaker 02:
The key point I want to emphasize is in the sentencing guidelines, as they're revised, it refers to the value of the laundered funds.

[00:19:46] Speaker 02:
And in our view, that's perfectly clear.

[00:19:49] Speaker 02:
It means the value of the laundered funds.

[00:19:51] Speaker 02:
Now, there was some disagreement among the circuits prior to the, I think it was the 2001 change in the sentencing.

[00:20:00] Speaker 02:
So it's possible the government's right,

[00:20:03] Speaker 02:
purpose of that change was not to change the meaning, but to clarify the meaning with the Sentencing Commission believing that some of the circuits had misinterpreted that language.

[00:20:15] Speaker 02:
But that's what the guidelines say, and that's what they mean.

[00:20:19] Speaker 02:
And in our view, trial counsel was clearly ineffective by not bringing that language to the attention of the trial court.

[00:20:33] Speaker 02:
The government says that there's no prejudice because the client received the sentence.

[00:20:37] Speaker 02:
Of course, he didn't receive the sentence he wanted.

[00:20:40] Speaker 02:
He received the sentence that the court felt was appropriate.

[00:20:43] Speaker 02:
He wanted, in fact, I think his specific request was a home detention.

[00:20:51] Speaker 02:
And again, going back to the first issue that we discussed, whether the trial court's statement on the sentencing issue

[00:21:02] Speaker 02:
were, was misleading.

[00:21:04] Speaker 02:
It was misleading.

[00:21:05] Speaker 02:
It told me a reasonable understanding of what trial court said is that these are, you give up rights by pleading guilty.

[00:21:11] Speaker 02:
These are the rights you give up.

[00:21:12] Speaker 03:
He was giving up the rights by pleading guilty.

[00:21:16] Speaker 03:
It was, it is also true that that pleading guilty involved a waiver, but by pleading, if he had not entered that play that day, he wouldn't have given up those rights, would he?

[00:21:28] Speaker 03:
If he had not entered that plea that day, he would not have waived those rights.

[00:21:32] Speaker 03:
He did lead anyway, the red have difficulty following why that's misleading.

[00:21:38] Speaker 02:
Your honor, I think the argument is that he didn't give up those rights by the act of pleading guilty.

[00:21:45] Speaker 02:
He gave up those rights because he opted to enter into a plea agreement.

[00:21:48] Speaker 03:
Right, right.

[00:21:51] Speaker 03:
And that was the circumstance that existed that day.

[00:21:53] Speaker 03:
And he knew it.

[00:21:56] Speaker 03:
The court knew it, and the court spoke consistently with it.

[00:21:58] Speaker 03:
And I'm just really not finding

[00:22:01] Speaker 03:
a lot to sympathize with your counsel.

[00:22:04] Speaker 03:
I don't see the misleading element.

[00:22:07] Speaker 02:
I think it's just that he did not understand that he had the right to plead guilty and retain.

[00:22:14] Speaker 02:
There's no evidence that he knew that he had the right to plead guilty and retain his rights.

[00:22:20] Speaker 02:
But as we've discussed, even setting aside that particular waiver argument, we think we should prevail in effective assistance, counsel.

[00:22:33] Speaker 00:
Thank you.

[00:22:34] Speaker 00:
Okay.

[00:22:35] Speaker 00:
Uh, thank you, counsel and make sure my colleagues don't have additional questions for you.

[00:22:40] Speaker 00:
No.

[00:22:41] Speaker 00:
Thank you, counsel.

[00:22:42] Speaker 00:
Thank you to both counsel.

[00:22:44] Speaker 00:
Mr Kaplan.

[00:22:45] Speaker 00:
You were represented by the court to assist the appellant in this matter and the court thanks you for your assistance.

[00:22:51] Speaker 00:
We'll take this case under submission.