[00:00:00] Speaker 02: Case number 23-3027, United States of America versus Aaron J. Thorpe, appellant. [00:00:07] Speaker 02: Mr. Katzoff for the appellant, Mr. Lenners for the appellee, Mr. Rorty, amicus curiae. [00:00:16] Speaker 01: Good morning. [00:00:16] Speaker 01: Good morning. [00:00:17] Speaker 01: My name is Howard Katzoff. [00:00:18] Speaker 01: I'm representing appellant Aaron Thorpe. [00:00:22] Speaker 01: This is a criminal case. [00:00:23] Speaker 01: Mr. Thorpe is appealing the district court's denial of a government motion [00:00:28] Speaker 01: dismissed counts pursuant to Rule 48A. [00:00:30] Speaker 01: The motion was filed in accordance with the court's discussion of Mr. Thorpe's unsuccessful ineffective assistance of counsel claim during his direct appeal regarding the plea proceedings where a very favorable plea was allowed to lapse. [00:00:54] Speaker 01: His co-defendant was granted relief [00:00:58] Speaker 01: He was denied relief on the Sixth Amendment grounds, but what's been referred to in the briefs is the Night Two Court cited Rinaldi versus United States and stated that the government has the discretion to ameliorate any injustice that would result from permitting the inadequately counseled defendant to accept the original wire plea offer, but not the co-defendant, Mr. Thorpe in this case, whose counsel's performance was adequate. [00:01:28] Speaker 01: They went on to say, even now, the prosecution may seek dismissal of some or all the charges against Thorpe under Rule 48A of the Federal Rules of Criminal Procedure. [00:01:39] Speaker 01: Based largely on that, I believe, the government did file a motion to dismiss under Rule 48A. [00:01:48] Speaker 01: The district court denied that without a hearing. [00:01:54] Speaker 01: And the issue, [00:01:57] Speaker 01: for this court now is whether the district court erred in denying the government's Rule 48 motion to dismiss. [00:02:06] Speaker 04: Mr. Katzoff, what is in the text of Rule 48A that allows the government to seek dismissal after conviction has become final and the appeals have run out? [00:02:20] Speaker 01: It's not so much what's in the text, it's what is not in the text. [00:02:25] Speaker 01: There's nothing in the text that sets any temporal limit as to when the district court, the executive can exercise their discretion. [00:02:34] Speaker 04: So the rule is about dismissals. [00:02:36] Speaker 04: So arguably after a conviction, after a judgment of conviction becomes final, there's nothing to dismiss. [00:02:46] Speaker 04: There's no indictment, information or complaint to dismiss. [00:02:51] Speaker 04: there's only a final judgment in the case. [00:02:53] Speaker 01: That's correct in terms of that particular language. [00:03:00] Speaker 01: But the courts have applied the rule to permit dismissals [00:03:13] Speaker 01: post-conviction, post-sentencing, post-appeal. [00:03:18] Speaker 01: Although some have questioned it, there's no case that's found that the rule, the text, the history is limiting in any way with regard to that. [00:03:34] Speaker 01: The use of the term conviction has not been determined by any court. [00:03:42] Speaker 01: to control or that there's a temporal limit that it has to be pre-sentence, pre-conviction. [00:03:49] Speaker 04: So is there a view that the executive can just dismiss a case at any point? [00:03:55] Speaker 04: I mean, are there any limits on that? [00:03:58] Speaker 04: I mean, the executive, because they have prosecutorial discretion, can, after a final judgment of the courts, just dismiss [00:04:08] Speaker 04: a conviction. [00:04:08] Speaker 04: What's the limiting principle on that? [00:04:11] Speaker 04: I mean, does Rule 48 do so much? [00:04:14] Speaker 01: Rule 48 seems to do exactly that. [00:04:19] Speaker 01: And it's tempered only by the leave of court requirement [00:04:25] Speaker 01: And the leave of court requirement has been universally unanimously defined as assuring or being a check or balance by the court that there is some limited discretion that assesses whether the motion is made in bad faith, whether there's improper motive, whether there are the types of factors that were discussed in Rinaldi [00:04:55] Speaker 01: Watson and other cases, including cases in this court that suggests that there was some bias, that there is some harassment of a defendant. [00:05:10] Speaker 01: And particularly where it's been consented, many of the decisions have found that when it's consented, there really can't be any issues of harassment or [00:05:25] Speaker 01: abuse towards the defendant, which is what Rinaldi suggested is the main purpose of Rule 48. [00:05:33] Speaker 01: Can you give me the sequence here? [00:05:36] Speaker 07: The Court of Appeals decides the case and remands the case to the district court, at least for night, [00:05:48] Speaker 07: and then Knight, then the government offers the plea, right, on remand, and Knight accepts it, right, and then it goes to the district court for approval or disapproval. [00:06:04] Speaker 07: That's the sequence, right? [00:06:06] Speaker 07: But did the district court approve of the [00:06:10] Speaker 07: The court ultimately. [00:06:30] Speaker 01: The procedural history is there's an appeal. [00:06:32] Speaker 01: Ineffective assistance is raised. [00:06:34] Speaker 01: It's remanded. [00:06:36] Speaker 01: It's litigated before the district court. [00:06:38] Speaker 01: And then I assume we're talking about the night two decision where night is granted relief remanded to the court. [00:06:46] Speaker 07: Mr. Knight was- There has to be some further proceedings in the district court with respect to Knight. [00:06:56] Speaker 07: Number one, the government has to offer him the plea. [00:06:59] Speaker 07: Correct. [00:07:00] Speaker 07: He has to accept it. [00:07:02] Speaker 07: And then there's a colloquy that has to go forward under the federal rules of criminal procedure. [00:07:08] Speaker 07: And what I'm asking you is whether all of that took place before the government filed a Rule 48 motion. [00:07:15] Speaker 01: It did. [00:07:17] Speaker 01: I'm reasonably certain it did. [00:07:19] Speaker 01: The government perhaps can answer that if I'm wrong. [00:07:23] Speaker 07: Well, technically it may be critical because as I understand it, when we're talking about the indictment, the indictment was against both men in a single indictment, right? [00:07:37] Speaker 07: Right. [00:07:37] Speaker 07: And so if the indictment is still open on remand because of the [00:07:44] Speaker 07: night procedure, then it's open. [00:07:47] Speaker 07: And all this argument about whether there was, because there was finality in this and that and the other thing, I mean, I suppose you can say it was final with respect to Thorpe, but not final with respect to night. [00:08:00] Speaker 07: But if we get into technicalities, the indictment was not final on remand, because it was remand. [00:08:08] Speaker 07: Correct. [00:08:10] Speaker 01: But the... So it may make a difference. [00:08:12] Speaker 01: Proceedings continued on with regard to Mr. Thorpe as they often do, as he had time to file his 2255 petition, 2255 petition was filed. [00:08:26] Speaker 01: That was pending at the time that the... What were the grounds for the 2255? [00:08:30] Speaker 01: The grounds for the 2255 were constitutional violations based on [00:08:39] Speaker 01: the totality of the circumstances of Mr. Thorpe's inability to accept the wire plea and some ancillary constitutional grounds that were raised, not accepted by the court. [00:08:55] Speaker 01: And that was ultimately denied by Judge Leah? [00:08:58] Speaker 01: Yes, it was. [00:09:00] Speaker 01: So those proceedings were ongoing at the time that the government filed the motion to dismiss. [00:09:09] Speaker 01: with regard. [00:09:10] Speaker 01: And that was a matter before Judge Leon. [00:09:14] Speaker 01: Judge Leon had a status hearing to address the issues. [00:09:18] Speaker 01: The case was not closed in that regard. [00:09:22] Speaker 01: There were proceedings before Judge Leon. [00:09:24] Speaker 01: Judge Leon set a briefing schedule. [00:09:26] Speaker 01: Judge Leon decided the matter. [00:09:30] Speaker 01: And I think within a couple of months after that decision, the government, I think, filed their motion to dismiss. [00:09:43] Speaker 01: I'm not sure if this is my with my rebuttal time or not. [00:09:48] Speaker 01: But bottom line is motion was filed in good faith as all the courts have found to ameliorate injustice. [00:09:59] Speaker 01: The evidence of good faith is consistent with the language of the night to decision. [00:10:06] Speaker 01: not clearly contrary to the public interest as defined by all of the cases that address public interest. [00:10:13] Speaker 01: The district court applied its own assessment, putting judicial authority, sentencing authority above the prosecutorial primacy that every court to address it has found. [00:10:29] Speaker 01: As this court is, or at least some judges on this court have recognized, there's no appellate reported decision of an unopposed or consented to Rule 48 motion being upheld or affirmed. [00:10:45] Speaker 01: Any? [00:10:46] Speaker 04: Mr. Caswell, if you're out of time to speak, my colleagues, have any further questions? [00:10:52] Speaker 00: Thank you. [00:10:53] Speaker 04: We'll give you some time on rebuttal. [00:11:02] Speaker 03: Good morning, I may please the court, Dan Lenners for the United States. [00:11:06] Speaker 03: Judge Randolph, to answer your question, Knight accepted the government's plea offer and was resentenced in 2021. [00:11:15] Speaker 03: And it was not until 2022 that the government filed a Rule 48A motion. [00:11:21] Speaker 03: OK, thank you. [00:11:22] Speaker 03: It's not the government's view that the indictment disappears for all purposes as soon as a conviction becomes final on direct appeal. [00:11:29] Speaker 03: For example, if a defendant is granted release on habeas, you go back to the trial court and you return to trial proceedings, but the government doesn't have to reindite the defendant at that time. [00:11:42] Speaker 03: And so it's not as though the charging instruments disappear from the case. [00:11:47] Speaker 03: And in the same respect, once a final judgment is entered by the trial court, there is no mention in Rule 48 of dismissal of a conviction or dismissal of a final judgment. [00:12:00] Speaker 03: But the Supreme Court in Rinaldi and Watts and other cases has allowed the government to use Rule 48A to dismiss charges even after the conviction has become final at the trial level. [00:12:13] Speaker 07: And even if the [00:12:17] Speaker 07: the remaining portion of the sentence simply violated government policy, not a constitutional violation, not a statutory violation, because impeded was just a policy. [00:12:30] Speaker 07: That's correct, Your Honor. [00:12:31] Speaker 07: And so here, I take it it's just a policy. [00:12:35] Speaker 07: I don't know. [00:12:36] Speaker 07: There's nothing written in the U.S. [00:12:38] Speaker 07: Attorney's Manual, is there, that covers a situation like this? [00:12:43] Speaker 03: There's not, Your Honor. [00:12:44] Speaker 03: And in fact, this is an unusual case in which something like this would have arisen on direct appeal. [00:12:52] Speaker 03: This was an ineffective assistance of counsel claim brought on direct appeal, remanded for additional proceedings. [00:12:59] Speaker 03: But in most courts, most other circuits and most state courts, ineffective assistance of counsel claims are not decided on direct review, they're decided on habeas. [00:13:09] Speaker 03: And so typically this kind of situation that arose here, which is admittedly rare, [00:13:14] Speaker 03: And the government's attempted use of Rule 48A after a conviction has become final is very rare. [00:13:21] Speaker 03: But this wouldn't have even come up on direct review. [00:13:24] Speaker 03: And so to put a limiting principle on it, Judge Rao, the government doesn't think the court needs to decide that. [00:13:31] Speaker 03: But if the court does want to address the question, we think that Rule 48A continues to allow the government to dismiss charges at a minimum while a defendant's timely 2255, [00:13:43] Speaker 03: is pending. [00:13:45] Speaker 03: And the government has some control over the prosecution to oppose that motion or to concede that the defendant is entitled to relief. [00:13:57] Speaker 04: What is there in the text of the rule that allows that? [00:14:00] Speaker 04: I mean, I'm looking at the word dismissal. [00:14:03] Speaker 04: You can dismiss an indictment, information, or complaint. [00:14:08] Speaker 03: I have the same answer as Mr. Katzoff, Your Honor. [00:14:10] Speaker 03: It's not what's in the rule, it's what's not in the rule. [00:14:12] Speaker 03: There is no time limitation in the rule. [00:14:15] Speaker 03: Other rules such as rules 33, 34, and 35 have expressed time limitations. [00:14:20] Speaker 03: And also, you can't infer from the reference to charging instruments that it only allows dismissal once a conviction has been entered because that is inconsistent with the Supreme Court's approach in Rinaldi. [00:14:33] Speaker 04: Sure, but so maybe Rinaldi we understand as being a statement of how we think about finality, right? [00:14:38] Speaker 04: Something is not final until all the appeals have, direct appeals have run out. [00:14:43] Speaker 04: But once they have, then the plain text of Rule 48 controls. [00:14:51] Speaker 04: So I disagree that- I don't think Rinaldi suggests that the words of Rule 48 have no meaning in terms of what power the government has. [00:14:59] Speaker 04: And that would be a strange way to read a rule. [00:15:02] Speaker 03: I agree your honor, but I don't I also don't think that one can infer that an indictment information or complaint continues to exist pass entry of final judgment by the trial court, but somehow then disappears when the appeal has become final. [00:15:18] Speaker 04: Well, maybe as a matter of first principles, this will, you know, should take take hold after final judgment or condition by the trial court. [00:15:26] Speaker 04: But we have precedents suggesting that it continues on through direct appeal. [00:15:31] Speaker 04: But I'm not sure why we should take from that that it should go beyond once the direct appeals are final. [00:15:38] Speaker 03: And I think the answer to that is there's no time limitation in the rule. [00:15:41] Speaker 03: And there is a time limitation in the second sentence during trial, which counsels against reading in a different time limitation. [00:15:50] Speaker 03: And we think that, at least to the degree you infer from the use of the word prosecution, that Rule 48 continues to apply while the government has some control over the prosecution that applies to collateral proceedings such as hate [00:16:04] Speaker 04: I also apply then for 48B. [00:16:06] Speaker 04: Could a court simply decide to dismiss the charges after at any time? [00:16:15] Speaker 04: I guess I'm not sure why there would, you know, why the government could do it, but the court couldn't under 48B. [00:16:21] Speaker 03: I don't have Rule 48B in front of me, but I think it contains more express time limitations about when the court is allowed to act that don't exist in Rule 48A. [00:16:32] Speaker 03: In any event, as we urge, the court doesn't need to decide this issue. [00:16:37] Speaker 03: The parties didn't raise it below. [00:16:39] Speaker 03: It wasn't the basis for the district court's ruling. [00:16:42] Speaker 07: Well, if there's a 2255 motion, then it is always open to the government [00:16:51] Speaker 07: not to oppose it and to confess error. [00:16:55] Speaker 07: And I'm sure that has happened. [00:16:58] Speaker 07: I mean, I can't point to a particular case, but over the years, I think it's pretty clear what happened. [00:17:04] Speaker 07: Every once in a while, the 2255 raises a question that had eluded the lower courts and it gets up to the Supreme Court and the government confesses error. [00:17:17] Speaker 07: And then what happens? [00:17:19] Speaker 07: Well, I don't think the government says, well, the indictment's final because you were already sentenced, that would make a mockery of 2255. [00:17:29] Speaker 07: And it doesn't have to accept the government's confession of error. [00:17:33] Speaker 07: I mean, ever since I think the 1800s, when that practice was begun, what the Supreme Court does is just remand the case back to the district court. [00:17:45] Speaker 03: So it's open. [00:17:48] Speaker 03: I agree with that, Your Honor. [00:17:49] Speaker 03: And that also raises a sort of separate but related point, which is, to the degree that there are time bars, the Supreme Court has set forth a structure during which courts may raise them to a sponte. [00:18:02] Speaker 03: And the courts may not raise them to a sponte when the parties have affirmatively waived any time bar. [00:18:11] Speaker 03: And clearly here, the government and the defendant [00:18:15] Speaker 03: to the degree the court were to read a time limitation under rule 48 have not just forfeited that argument but have waived it the government by moving for relief and the defense by agreeing with the government and so just like under rule 33 the if the government waives a time bar the court forfeiture [00:18:37] Speaker 06: is applied against an appellant or an appellee. [00:18:43] Speaker 06: Like here it's the district court that you're saying forfeited. [00:18:47] Speaker 06: It seems a little odd to apply the same forfeiture rules to a district court that we would apply to a party. [00:18:55] Speaker 03: So in terms of forfeiture, we're not arguing that the court has no power to decide the issue. [00:19:01] Speaker 06: We're suggesting that in the exercise of its discretion, it need not... An odd exercise of discretion to allow Rule 48 to do what Rule 48 categorically does not allow. [00:19:16] Speaker 03: Well, that's what this court did in Smith. [00:19:18] Speaker 03: And that's what the Fourth Circuit did in Rice. [00:19:21] Speaker 03: In fact, in Rice, the Fourth Circuit reversed the denial. [00:19:23] Speaker 06: Smith, the forfeiture was a forfeiture by the criminal defendant. [00:19:29] Speaker 06: And that forfeiture was held against him as part of the adversarial process. [00:19:34] Speaker 06: But again, the district court is not an adversary in an adversarial process. [00:19:40] Speaker 03: I agree, Your Honor. [00:19:41] Speaker 03: But in Rice, the parties forfeited it. [00:19:43] Speaker 03: And the Fourth Circuit not only found that it wouldn't reach the issue because of it. [00:19:48] Speaker 06: You know of any case other than Rice where an appellate court has allowed Rule 48A to dismiss an indictment after the final appeal has finished? [00:20:03] Speaker 03: I'm not aware of any, Your Honor. [00:20:05] Speaker 03: Waiver is a different issue. [00:20:07] Speaker 03: And the Supreme Court in [00:20:10] Speaker 03: Dave versus McDonough said that where the government affirmatively waives the statute of limitations for a habeas petition, it would be an abuse of discretion for the district court to sue a spontane vocate. [00:20:25] Speaker 03: And then following on in Wood, the Supreme Court said that even though there are times in which a court of appeals might recognize a time bar, [00:20:33] Speaker 03: they should not do it where there's an affirmative waiver. [00:20:36] Speaker 04: Mr. Winters, though, I mean, I'm not sure the question here is really a timeliness one or like a time bar. [00:20:41] Speaker 04: I mean, in Rule 33, you know, in Smith, I mean, there are specific days. [00:20:45] Speaker 04: I mean, here, arguably, the question is about the government's authority, about what continuing authority the government has to use Rule 48, you know, in this context where all the direct appeals have run out. [00:21:00] Speaker 04: I mean, in that prior question of authority, I mean, I'm not sure it's very prudent to think about that as waived or forfeit. [00:21:07] Speaker 04: I mean, if the government doesn't have the authority to do something, I'm not sure the parties can stipulate to the fact that government does have the authority. [00:21:18] Speaker 03: I'm not sure that those are actually different things. [00:21:21] Speaker 03: Under Rule 33, you could say that the trial court has no authority to grant a new trial, or the defendant has no authority to move for a new trial. [00:21:30] Speaker 03: But the Supreme Court has nonetheless found that the parties can waive that time bar. [00:21:35] Speaker 03: And the trial court nonetheless has power to act as jurisdiction. [00:21:40] Speaker 06: Usually with forfeiture and waiver, it's a party that has given something up. [00:21:46] Speaker 06: Here, it's almost the reverse. [00:21:49] Speaker 06: The government is asserting a power that Rule 48 may not give it. [00:21:53] Speaker 06: The defendant is, for understandable reasons, colluding in the government's assertion of a power that Rule 48 may not give it. [00:22:01] Speaker 06: It just doesn't seem like the forfeiture context waiver. [00:22:05] Speaker 06: applies in a normal way. [00:22:07] Speaker 03: I agree that it's an unusual situation, Your Honor. [00:22:10] Speaker 03: But I think that, again, this court need not decide the issue. [00:22:16] Speaker 03: It has discretion, at the very least, to decide whether Rule 48A applies in these situations. [00:22:22] Speaker 03: Sorry, do you want to finish yourself? [00:22:24] Speaker 03: I was just going to say, we think it's commensurate with justice to allow the government to grant the relief that this court in night two said was [00:22:35] Speaker 07: Yeah. [00:22:37] Speaker 07: In fact, you have a statute that authorizes the court to do exactly what you said. [00:22:46] Speaker 07: And it was cited in Rinaldi. [00:22:48] Speaker 07: Although I don't think the parties picked it up. [00:22:50] Speaker 07: It's 28 USC 2106. [00:22:51] Speaker 07: And if you take a look at footnote eight in Rinaldi, the court says that what they're doing is giving a just result. [00:23:02] Speaker 07: And they quote the just, which is from 2106. [00:23:06] Speaker 03: That's right, Your Honor, although I could be wrong, but I think that statute may apply to the relief at the Supreme Court. [00:23:12] Speaker 07: No, it says the beginning of the statute says the Supreme Court and all other appellate courts. [00:23:20] Speaker 07: So it applies to us. [00:23:23] Speaker 03: And the government thinks that the result that's commensurate with justice would be, in this case, to reverse the district court's denial of the Rule 48 motion as an abuse of discretion. [00:23:35] Speaker 03: Judge Walker, I don't know if you had a question you wanted to ask. [00:23:38] Speaker 06: I did have a couple more. [00:23:39] Speaker 06: One is just sort of a technical question. [00:23:40] Speaker 06: Let's say that [00:23:42] Speaker 06: an appeal is over. [00:23:45] Speaker 06: Conviction has been final for several years. [00:23:47] Speaker 06: And AUSA discovers Brady evidence that in his good judgment, good faith, thinks requires a new trial. [00:23:59] Speaker 06: What is the procedural mechanism at that point? [00:24:03] Speaker 06: And does 48A come into play? [00:24:08] Speaker 03: So I think that there are the rule 33 provides a three year time period for a motion for new trial based on newly discovered evidence. [00:24:17] Speaker 06: So if you're within the three years, I think from the USA or the defendant. [00:24:22] Speaker 03: I don't know, Your Honor, but presumably the government in that situation would turn the Brady material over to the defendant, and the defendant would then move. [00:24:33] Speaker 03: If it were after three years, there's certainly possible that the defendant could move under 2255, and the government could waive the one-year statute of limitations. [00:24:45] Speaker 03: And if, for some reason, the government was unwilling to do that, there might be another [00:24:51] Speaker 03: exception to the statute of limitations in 2255, but I don't know the answer to that. [00:24:56] Speaker 06: That's helpful and as I think it through, it may well be the government wouldn't have to do anything procedurally, it would just turn the evidence to the defendant and then the defendant could make the motion and be off and running from there. [00:25:09] Speaker 06: I wonder, there's been [00:25:13] Speaker 06: And I'm expressing no opinion of whether this is a good thing or bad thing. [00:25:18] Speaker 06: But there's been talk in the news that there could be a reconsideration of the January 6th prosecutions if there's a new administration. [00:25:26] Speaker 06: Let's imagine that that is the case. [00:25:29] Speaker 06: Would it be appropriate for the U.S. [00:25:32] Speaker 06: Attorney's Office under orders from the Attorney General to [00:25:36] Speaker 06: file a rule 48 a motion a six cases that are post a district court. [00:25:43] Speaker 06: You have [00:25:48] Speaker 03: Yes, at least under the same circumstances as this case. [00:25:53] Speaker 03: So where the defendant, even if the conviction is final on direct appeal, which there are very few of those at this point, if the defendant has filed a timely 2255, which is still pending, and thus the government has some power over the continued prosecution, then [00:26:12] Speaker 03: executive's view is that it could move under Rule 48A to dismiss those charges and that the district court would have limited or no discretion to deny them and any discretion possessed would be based on bad faith. [00:26:28] Speaker 06: And what does the habeas 2255 component of this case have to do with whether Rule 48A applies? [00:26:36] Speaker 03: The rule refers to the government dismissing the prosecution. [00:26:41] Speaker 03: And as originally enacted, the Rule 48A said, dismiss an indictment, information, or complaint, and the prosecution shall thereupon cease. [00:26:50] Speaker 03: So amicus has argued that that use of the term the prosecution allows the government to move under Rule 48A while it continues to have [00:27:02] Speaker 03: control the prosecution which amicus's views through final conviction. [00:27:08] Speaker 03: But the government retain some control over the prosecution when there's a pending timely habeas petition as judge Randolph noted it could. [00:27:17] Speaker 03: It can waive time limitations, it can agree to relief. [00:27:20] Speaker 04: Habeas relief is not about the prosecution. [00:27:23] Speaker 04: I mean, the whole point of Habeas is post-conviction relief. [00:27:27] Speaker 04: I'm not sure we think about the government's role in responding to a habeas petition to be part of a prosecution. [00:27:35] Speaker 04: But if relief is granted... That's not historically how we think about habeas. [00:27:39] Speaker 04: It's a very strange framework. [00:27:42] Speaker 03: Well, I point out that if a defendant prevails in a habeas petition, he is viewed as having prevailed in the prosecution for purposes of a Section 1983 claim. [00:27:56] Speaker 03: And the government, again, has a substantive role in responding to and can agree that the defendant is entitled to relief. [00:28:04] Speaker 03: And so that's why we think that Rule 48A. [00:28:08] Speaker 03: Prosecutions are criminal matters, right? [00:28:12] Speaker 03: Yes. [00:28:13] Speaker 03: And habeas is a civil matter, right? [00:28:16] Speaker 03: No, I don't think that's right. [00:28:17] Speaker 03: I think I think it's the Supreme Court has said it's its own animal, that it's not really criminal. [00:28:22] Speaker 03: It's not really civil. [00:28:23] Speaker 03: It's something different on the civil docket. [00:28:27] Speaker 03: It is on the civil docket. [00:28:28] Speaker 03: Yes, your honor. [00:28:28] Speaker 03: And it's a lawsuit against a warden. [00:28:33] Speaker 03: Well, I think they responded to a 2255 motion as the United States is not the word. [00:28:39] Speaker 03: I could be here. [00:28:39] Speaker 06: That's a good point. [00:28:40] Speaker 06: OK. [00:28:41] Speaker 06: And then I wondered how the, if you're right about Rule 48A, what does that do to the accountability that is inherent in pardons and commutations? [00:28:53] Speaker 06: So pardon commutation powers be absolute. [00:28:58] Speaker 06: But a check on that, on the president's absolute discretion to pardon and commute is the president has to put his name on the pardon. [00:29:06] Speaker 06: And so the public knows [00:29:08] Speaker 06: this was a bad decision, they know who to blame. [00:29:12] Speaker 06: Now, of course, a USA is answered to US attorney who's answers attorney general answers to the president. [00:29:17] Speaker 06: So there's you are an agent of the president. [00:29:19] Speaker 06: But it does seem like if you can do everything a pardon does through rule 48 a host appeal, you've allowed [00:29:32] Speaker 06: You've created a system where a defendant can be pardoned without the president having to sign his name to the pardon. [00:29:40] Speaker 03: So I have two answers to that, Your Honor. [00:29:41] Speaker 03: One is that we don't think Rule 48A entirely overlaps with the pardon power. [00:29:47] Speaker 03: You can pardon someone who's passed away. [00:29:50] Speaker 03: We're not arguing that Rule 48A applies then. [00:29:52] Speaker 03: You can pardon someone before they've been charged. [00:29:54] Speaker 03: Rule 48A also doesn't apply then. [00:29:57] Speaker 03: In terms of accountability, we think that the president ultimately acts through the [00:30:04] Speaker 03: members of the executive branch, and so the president would be accountable whether he or she is personally pardoning the person or whether the president is acting ultimately through. [00:30:15] Speaker 07: There's another difference, and that is Rule 48A requires leave of the court. [00:30:22] Speaker 07: The pardon and commutation power, despite the General Flynn case, does not require approval. [00:30:31] Speaker 06: That's correct, John. [00:30:32] Speaker 06: That's another difference. [00:30:33] Speaker 06: But your theory is that leave of the court does next to no work, that the court should just always grant a 48A motion that the defendant consents to. [00:30:43] Speaker 03: Unless there is bad faith on the part of the government. [00:30:45] Speaker 03: So if the AOC was taking a bribe, if the AOC had animus against the victim, if the AOC wanted to go on a vacation, the defendant would obviously consent under those circumstances. [00:30:57] Speaker 03: And although the court doesn't have [00:31:00] Speaker 03: address this issue and many courts have said that the leave of court requirement would allow the court to deny it when the prosecutors effectively acting ultra various. [00:31:08] Speaker 06: I would rule 40 if you're right about everything you said and argued regarding rule 48 a why would it not apply even after a defendant has passed away. [00:31:23] Speaker 03: So [00:31:25] Speaker 03: I mean, I don't even know that. [00:31:27] Speaker 03: I don't know what's left after a defendant has passed away in terms of a criminal prosecution. [00:31:32] Speaker 06: And I think there's this 1984 case, Korematsu, not the infamous 1940s case Korematsu, but same person. [00:31:42] Speaker 06: And the government sought to, you know, file Rule 48A motion. [00:31:48] Speaker 06: The district court didn't [00:31:50] Speaker 06: allow it. [00:31:51] Speaker 06: I'd have to go back and reread whether Mr. Korematsu was still alive at the time you may remember. [00:31:58] Speaker 03: So in that case, Your Honor, Korematsu moved for a writ of quorum nobis. [00:32:02] Speaker 03: Was he still alive? [00:32:03] Speaker 03: He was still alive. [00:32:04] Speaker 03: He moved for a writ of quorum nobis. [00:32:06] Speaker 03: And the government removed, while that case was pending, the government removed under Rule 48A to dismiss all of the charges. [00:32:14] Speaker 03: And Korematsu opposed that. [00:32:17] Speaker 03: He wanted a decision on his writ as to, I think, the injustice that had occurred during the Japanese internment. [00:32:24] Speaker 03: and so the district court denied it. [00:32:26] Speaker 03: But there, there was no timely 2255 motion and Korematsu was not still incarcerated, both of which could provide time limits to the government's power under Rule 48A that aren't implicated by this case. [00:32:41] Speaker 04: Let me just say, I mean, you've suggested that the text of Rule 48A doesn't really matter here. [00:32:47] Speaker 04: So you're, in some sense, appealing to general Article II power or common law power. [00:32:55] Speaker 04: But I'm not sure what in Article II or the common law would allow the executive to continue a prosecution after the Article III courts have said it's a final judgment. [00:33:09] Speaker 04: Right? [00:33:09] Speaker 04: So you're not really looking at the text of the rule. [00:33:11] Speaker 04: So what is your account of, you know, the Article 2 power or the common law power that allows the prosecution to continue in this way? [00:33:20] Speaker 03: So I think I disagree that we're not looking at the text of the rule. [00:33:24] Speaker 04: Well, you said that. [00:33:25] Speaker 04: I mean, there's nothing, you know, in the text that supports what you're saying. [00:33:30] Speaker 03: Well, it has no time limit. [00:33:31] Speaker 03: It says the government may with leave of court dismiss an indictment, information or complaint. [00:33:36] Speaker 04: And we don't have an indictment, information or complaint still live here. [00:33:39] Speaker 03: I agree with that, Your Honor, except to the degree that that's also true on direct appeal and the Supreme Court has applied the rule then. [00:33:48] Speaker 04: Okay, so say we say, okay, through direct appeal, but why after direct appeal? [00:33:53] Speaker 03: And again, Your Honor, because the information indictment or complaint is still alive to the degree that habeas relief is granted to the defendant. [00:34:01] Speaker 03: The government need not reindite. [00:34:04] Speaker 04: But assume I don't buy that argument. [00:34:08] Speaker 04: Can you point to something in the common law or in the practice of the relationship between the executive and the courts that would allow the executive to do something like this? [00:34:19] Speaker 03: I can't, other than to say it appears Rule 48, at least as applied by the Supreme Court, is even broader than the common law. [00:34:25] Speaker 03: The common law would have cut off when the district court entered judgment. [00:34:32] Speaker 03: It would have cut off the government's power. [00:34:34] Speaker 03: And so the Supreme Court has not limited Rule 48A to be commensurate. [00:34:39] Speaker 04: They also have not expanded it past direct appeal. [00:34:43] Speaker 03: That's true, Your Honor. [00:34:45] Speaker 04: But you don't have an account of why it should be extended. [00:34:48] Speaker 04: I'm giving you an opportunity to say why it should be as a matter of first principles applied beyond direct appeal. [00:34:55] Speaker 04: I'm not hearing an argument for that. [00:34:58] Speaker 03: I think I have said why we think that's true. [00:35:02] Speaker 03: And I would be repeating myself to say it again. [00:35:05] Speaker 03: Can you repeat? [00:35:06] Speaker 03: Can you repeat yourself? [00:35:07] Speaker 03: Sure. [00:35:08] Speaker 03: So the rule has no time limit. [00:35:11] Speaker 03: It says the government may dismiss an indictment, information, or complaint. [00:35:14] Speaker 03: Those words in and of themselves don't limit it to before conviction becomes final on direct appeal. [00:35:20] Speaker 03: And to the degree you think that they must have some limitation, that that limitation would continue to apply during habeas proceedings when the defendant could be granted relief and the government would go back and try him again on the same indictment. [00:35:34] Speaker 03: And when the prosecution continues in the sense that the government has some control to agree to relief during that time period. [00:35:44] Speaker 03: we think that the rule properly would continue to apply at a minimum while there is a timely 2255 petition. [00:35:51] Speaker 07: Can I ask, is there a... Is there a textual argument you can make under Rule 48A without dealing with Rinaldi and all the other cases? [00:36:01] Speaker 07: And it's this, that in the federal system, you can't have a conviction without an indictment and information or a complaint. [00:36:12] Speaker 07: That's true, right? [00:36:13] Speaker 03: Yes, sir. [00:36:14] Speaker 07: And if you get rid of the indictment and to say that the conviction still stands, it's sort of like the smile without the cap. [00:36:26] Speaker 07: And so technically, if you undercut the indictment, the conviction has to fall. [00:36:36] Speaker 03: I think that's right, Your Honor. [00:36:37] Speaker 03: I don't think that the indictment disappears when judgment is entered. [00:36:41] Speaker 03: or the indictment somehow disappears when the conviction becomes final on appeal, which I think is a different way of saying the same thing, that it continues to exist as a potentially applicable document even after those things happen. [00:36:55] Speaker 06: If someone was testifying and they were asked, have you been convicted of a crime? [00:37:04] Speaker 06: And they said, I'm under indictment. [00:37:08] Speaker 06: Do you think that would be an honest answer? [00:37:11] Speaker 06: assuming that they were convicted of a crime 10 years ago? [00:37:19] Speaker 03: It would be an incomplete answer. [00:37:22] Speaker 03: It would be accurate, but misleading. [00:37:25] Speaker 06: I mean, I value, I appreciate your rolling with the question, but it does seem really odd to think of someone who was convicted a decade ago as being currently under indictment. [00:37:39] Speaker 06: how we think of indictments, they end. [00:37:42] Speaker 03: I just, I don't think that is accurate to say indictments end. [00:37:45] Speaker 03: That person was indicted and now stands convicted, but that doesn't mean the indictment has vanished from, you know. [00:37:55] Speaker 06: Some of the briefings cited this really, I thought, thoughtful article in the Seton Hall Law Review by Rebecca Krauss. [00:38:01] Speaker 06: It's called the theory of prosecutorial discretion in federal law origins and developments. [00:38:05] Speaker 06: And it talks about kind of common law, no low. [00:38:08] Speaker 06: I'm going to almost certainly mispronounce this, but prosecute. [00:38:13] Speaker 06: You're looking to the wrong person. [00:38:16] Speaker 06: Does your interpretation of Rule 48A taking out the with leave of court language? [00:38:24] Speaker 06: Imagine that wasn't in Rule 48A. [00:38:26] Speaker 06: Does your interpretation of Rule 48A differ from [00:38:30] Speaker 06: common law understanding of no low prosecute. [00:38:34] Speaker 03: So I'm not saying nolly. [00:38:35] Speaker 03: And thanks. [00:38:37] Speaker 03: Yes, because of the Supreme Court's decision. [00:38:40] Speaker 03: So my understanding of common law use of nolly is that the prosecutor had unfettered discretion to dismiss charges before trial. [00:38:49] Speaker 03: that it needed the court's consent during trial and then it once again had unlimited discretion to dismiss between the end of trial between verdict and sentencing at which point it cut off and so. [00:39:05] Speaker 03: That is inconsistent with the Supreme Court's decision in Rinaldi and Watts and other courts of appeals decisions that have allowed the government to move under Rule 48A post-sentencing and final judgment through the appeals process. [00:39:21] Speaker 06: You've been patient with me and my colleagues have been patient with me. [00:39:23] Speaker 06: I have one more question. [00:39:25] Speaker 06: There are B pleas and C pleas, if I'm remembering right. [00:39:29] Speaker 06: A B plea gives discretion to the district court, although there may be a recommendation of sentencing. [00:39:35] Speaker 06: And a C plea says to the district court, take this sentence or sentencing range. [00:39:40] Speaker 06: And if you don't agree with it, then there's not a guilty plea. [00:39:43] Speaker 06: You would know a thousand times better than I would. [00:39:45] Speaker 06: Is that how it works? [00:39:47] Speaker 06: Roughly, yes, Your Honor. [00:39:49] Speaker 06: OK. [00:39:49] Speaker 06: So if you're right about how Rule 48A can apply after sentencing, [00:39:55] Speaker 06: then it seems like it would eliminate bee pleas, really. [00:40:03] Speaker 06: In effect, it would eliminate bee pleas because the government could [00:40:09] Speaker 06: could still do see please they would say the same, but if the government did a B plea and the district court didn't agree with the recommendation that the defendant the government have compromised on and instead sentence the defendant to a higher sentence. [00:40:23] Speaker 06: Then the government could just after the sentencing do will 48 every every time. [00:40:29] Speaker 06: Just giving the district court basically no discretion. [00:40:31] Speaker 06: And you would have basically made it. [00:40:34] Speaker 06: So the only way to get a plea bargain is through, in effect, the C plea process. [00:40:41] Speaker 03: So it could be wrong, Your Honor, but I think the reason that the C plea needs the court to accept the plea in a way that B doesn't is because it restricts the court sentencing authority. [00:40:53] Speaker 03: And so under B, the government is effectively dismissing charges post-sentencing under Rule 48A once the court sentences the defendant. [00:41:03] Speaker 03: I don't think I'm answering your question, but I probably didn't ask well. [00:41:06] Speaker 06: And let's just take a regular plea, a normal plea, a B plea. [00:41:09] Speaker 06: They the government says we want you to we want you to do a 5 year sentence and the defendant has pleaded guilty. [00:41:17] Speaker 06: I think in that situation, the court can do a 5 year sentence or can do a higher sentence and the guilty plea is still still stands. [00:41:26] Speaker 06: But if the government doesn't like the sentence it could then just immediately do a rule 48 a motion. [00:41:33] Speaker 06: And [00:41:34] Speaker 06: get the indictment dismissed. [00:41:36] Speaker 06: So it would give the government a veto power over the district court sentencing that it only has now in a C plea context, not in a B plea. [00:41:48] Speaker 03: So I guess I have two answers. [00:41:49] Speaker 03: One is they certainly wouldn't apply in all situations, say, to a one count indictment or two situations in which [00:41:59] Speaker 03: You know, the government couldn't just dismiss certain counts to arrive at its preferred sentencing outcome. [00:42:04] Speaker 03: But more practically speaking, that's not what's at issue here. [00:42:08] Speaker 03: You know, that arguably could be the kind of bad faith that would allow a court to deny a Rule 48, even an unopposed Rule 48A motion, because the government is attempting to usurp the court's power. [00:42:22] Speaker 03: But that's not what occurred here. [00:42:26] Speaker 02: Thank you. [00:42:45] Speaker 05: Good morning, Your Honor. [00:42:58] Speaker 05: Opposing counsel. [00:42:59] Speaker 05: May it please the court. [00:43:00] Speaker 05: My name is Keenan Roddy and I'm the court appointed [00:43:05] Speaker 05: The district court refused to grant the party's Rule 48A motion because it was deeply troubled by the timing of the motion and it believed it was not in the public interest. [00:43:14] Speaker 05: In making that decision, the court did not abuse its discretion. [00:43:18] Speaker 05: I want to highlight quickly just the three things that decide this case. [00:43:21] Speaker 05: First is that there's no waiver issues. [00:43:24] Speaker 05: As Judge Walker pointed out, waiver normally applies to parties, not the court. [00:43:28] Speaker 05: Here, the court was clearly troubled about how the motion was being used. [00:43:31] Speaker 05: In its own words, quote, [00:43:32] Speaker 05: to reverse engineer charges on which the government has already obtained convictions and a sentence appellate on appellate review. [00:43:39] Speaker 05: And it repeated these concerns throughout its analysis. [00:43:43] Speaker 05: And it held that its discretion was greater than it would be during a pending prosecution, whether the court was right on that or issues that this court needs to address. [00:43:51] Speaker 05: Second, the district court did not abuse that discretion. [00:43:55] Speaker 05: As your honor is pointing out, Judge Rao, nothing in the text of the rule allows the government to use the motion in this way. [00:44:03] Speaker 05: The government and the parties seem to say that nothing in the rule stops the government from doing it. [00:44:09] Speaker 05: But first of all, that's not true, because it only allows measures of indictments and prosecutions. [00:44:14] Speaker 05: But second, the government and the parties need to point to something affirmative in the rule that grants that power, not just say that nothing stops it. [00:44:22] Speaker 05: The parties also say that separate [00:44:25] Speaker 04: In fact, what about Rinaldi right so I mean if if we were writing on a clean slate this will be a mean that there's no dismissal after a conviction, you know after there's a judgment by the district court. [00:44:40] Speaker 05: So I think some of the statements you were saying earlier are exactly how this court should resolve the case. [00:44:46] Speaker 05: So I think if we were talking from a clean slate, I think this would be a far, far easier case. [00:44:53] Speaker 05: And then the question is, what do we do with fraudulity, since some of this reasoning seems to apply. [00:44:58] Speaker 05: I don't think you should expand Rinaldi for four reasons. [00:45:01] Speaker 05: One of them is, and this is important, is that Rinaldi didn't actually decide whether or not Rule 48A should actually be used in this way. [00:45:08] Speaker 05: That is one of the insights that this court made in Smith, saying that, OK, it applied Rule 48A, but it didn't explain at all why it did so. [00:45:16] Speaker 05: And in fact, this court in Smith left open the question whether even in fact, Rule 48A applies to convictions. [00:45:23] Speaker 05: But even if you take Rinaldi at face value, [00:45:26] Speaker 05: You shouldn't expand it, one, because courts have repeatedly noted this discrepancy, and they've always limited Rinaldi to the facts that, OK, we're going to keep it pending appeals, but not further. [00:45:36] Speaker 04: The theory of Rinaldi is, in some sense, it's not final. [00:45:40] Speaker 04: The government says, on habeas, the indictment is still sort of working in the background. [00:45:46] Speaker 04: If a criminal defendant prevails on habeas, then we're going back to the indictment. [00:45:53] Speaker 04: What about that? [00:45:54] Speaker 05: And so, and here's why I think even ronality is somewhat defensible in a way that trying to apply it here on a 2255 motion is not. [00:46:02] Speaker 05: Because at least here, there's not a final conviction. [00:46:04] Speaker 05: And at least here, it's a direct continuation of the same criminal proceeding. [00:46:09] Speaker 05: But by the time you get to a 2255 motion, I mean, it defies the ordinary sense of the word, you know, prosecution to say that someone who fires a 2255 motion is being prosecuted. [00:46:19] Speaker 05: And as Judge Walker pointed out as well, a 2255 or habeas motion is under the civil spectrum as well, or at least some sort of a mix. [00:46:31] Speaker 05: And to go even a little bit further, Otto, I think the parties appear to have two approaches about [00:46:40] Speaker 05: when the rule can apply. [00:46:41] Speaker 05: One of them seems to be as long as there's post-conviction remedies, like a 2255. [00:46:47] Speaker 05: And one of them seems to be as long as I think someone is in federal prison generally. [00:46:52] Speaker 05: If the line is 2255, that means that prosecutorial discretion is going to be coming in and out and in and out and in and out, depending on whether or not there's a post-conviction motion. [00:47:01] Speaker 05: I don't think this court should interpret prosecutorial discretion as this kind of ghost that comes in and out whenever there's a 2255 motion. [00:47:10] Speaker 05: And as Judge Randolph pointed out as well, when we're talking about prosecutorial discretion, the Supreme Court has already rejected the idea that just because the government concedes error on a conviction and in fact agrees that a conviction should be taken away, that that means that the district court or the judiciary's hands are tied. [00:47:29] Speaker 05: No. [00:47:30] Speaker 05: The Supreme Court has said again and again that a court so independently analyzes whether in fact this conviction should stand. [00:47:37] Speaker 05: It shouldn't be any different just because the title of the motion here is Rule 48A rather than 2255. [00:47:42] Speaker 05: I also want to point out [00:47:52] Speaker 05: that adopting the party's reasoning about Rule 48A would indeed post pretty problematic reasons. [00:47:58] Speaker 05: I don't see very strong limiting principles. [00:48:00] Speaker 05: As Judge Walker pointed out, I don't really see why, if you say that as long as the Rule 48A motion is filed in good faith, why it couldn't be used, for instance, to pardon all low-level drug offenders if the US attorney thought that that was in the best interest. [00:48:15] Speaker 05: Or you can think of any sort of amount of examples. [00:48:18] Speaker 05: This is a really important point, and it's that the executive does indeed have unilateral authority to remove convictions after the fact. [00:48:26] Speaker 05: That power exists to the executive, but it belongs to the president alone. [00:48:29] Speaker 05: And the president is personally accountable for the use of that power. [00:48:33] Speaker 05: No court, or virtually no court, I think other than the Bryce v. Rivera case, has said that prosecutorial discretion just applies, you know, even after a conviction, and especially after appeals. [00:48:43] Speaker 07: So Judge Leon got into none of that, right? [00:48:46] Speaker 05: So Judge Leon, well, I don't think that's true, actually, in two different ways. [00:48:52] Speaker 05: First of all, he definitely said that here, his discretion was much greater than it would be than during a pending prosecution. [00:48:58] Speaker 05: Now, you're 100% right. [00:49:00] Speaker 05: I'm adding additional reasons. [00:49:02] Speaker 05: But as this court has pointed out, it has, quote, no qualms about addressing additional arguments raised by a court-appointed advocate as long as it's the same essential issue, I guess. [00:49:13] Speaker 07: The question remains. [00:49:14] Speaker 07: Judge Leon thought that, [00:49:16] Speaker 07: under Rule 48A, he could evaluate the, quote, public interest. [00:49:23] Speaker 07: Are you supporting that? [00:49:25] Speaker 05: Well, so, you know, and my key recommendation is that at the bare minimum, the district court did not abuse his discretion in finding that. [00:49:34] Speaker 05: I think it's honestly arguable that, you know, it would just be an automatic abuse of discretion to use the rule in this way because it does not really apply here. [00:49:44] Speaker 07: You know, there's a famous statement by Chief Justice Marshall about discretion. [00:49:49] Speaker 07: This is said to be a motion to the court's discretion, but the court's discretion is not its inclination, it's its judgment. [00:49:58] Speaker 07: And its judgment is guided by sound legal principles. [00:50:01] Speaker 07: So when you talk about discretion, what are the legal principles that you have in mind? [00:50:05] Speaker 05: So and I think here the legal principles that, and let me know if this is responsive to your honor's question, is that at least here in the post-superior context, the court had the ability to independently decide whether granting the motion was in the public interest. [00:50:22] Speaker 05: And I think he looked at a variety of factors, and he reasonably concluded that it was not. [00:50:27] Speaker 05: Because although it's definitely true that there was one factor that might support release. [00:50:31] Speaker 07: Who better represents the public interest [00:50:35] Speaker 07: The United States attorney or the district judge? [00:50:40] Speaker 05: Well, and I think absolutely the government's views should be given weight. [00:50:43] Speaker 05: And this is actually the young case, Your Honor, that's cited in my brief. [00:50:46] Speaker 05: And they pointed out, I mean, it's pretty inadequate circumstances, but the government confessed to error. [00:50:51] Speaker 05: You know, the court specifically said the public interest is not just entrusted to the executive, it is also entrusted to the courts. [00:50:58] Speaker 05: I asked you, who better to represent? [00:51:00] Speaker 05: Oh. [00:51:02] Speaker 05: Well, and I think that, I mean, you know. [00:51:05] Speaker 05: It's a rhetorical question. [00:51:07] Speaker 05: But I think, and here's the key thing, I think that power is ultimately given to the district court. [00:51:13] Speaker 05: And so the district court is the one who ultimately needs to make that, you know, consideration. [00:51:17] Speaker 05: Even though, by the way, I 100%, you know, we 100% agree the government's views and the defendant's views are relevant. [00:51:23] Speaker 05: You know, absolutely. [00:51:25] Speaker 05: And I'm happy to keep talking to as well, but just one final point is that just to the extent that we're looking at the public interest, as I mentioned, it's definitely one factor, the fact that Mr. Thorpe couldn't take this plea deal, and that was relevant. [00:51:40] Speaker 05: But there were many other factors that the parties, in fact, said that they did not even have to consider. [00:51:44] Speaker 05: And they are definitely relevant to any sort of more holistic public interest analysis. [00:51:48] Speaker 07: Is Judge Leon's opinion [00:51:51] Speaker 07: in Thorpe consistent with his acceptance of the plea in Knight. [00:51:58] Speaker 07: And are you saying? [00:51:59] Speaker 07: If it was in the public interest to require Mr. Thorpe to serve all 24 years of his sentence, why wasn't it in the public interest to require Mr. Knight to serve all 24 years of his? [00:52:13] Speaker 05: And so, and I think the key insight is that the scope of his discretion was radically different. [00:52:18] Speaker 05: Because in night two, they vacated the conviction and remanded to the court. [00:52:23] Speaker 05: At that point, we have, you know, charging determinations. [00:52:26] Speaker 05: At that point, yeah, the district court's discretion was limited in terms of what he might want to do. [00:52:31] Speaker 05: But here, there's no charging left. [00:52:32] Speaker 05: We only have a final conviction. [00:52:35] Speaker 07: And so, you know, because of basically the vastly different standards of review... An unconstitutional violation occurred and harmed Mr. Knight, right? [00:52:46] Speaker 05: That's right, although it was not his constitution. [00:52:48] Speaker 07: And it also harmed Mr. Thornton. [00:52:51] Speaker 05: Oh, yes, yes. [00:52:52] Speaker 07: Right? [00:52:53] Speaker 07: Yes. [00:52:53] Speaker 07: He's suffering from a constitutional violation, and so was Mr. Knight. [00:52:57] Speaker 07: So why shouldn't they be treated the same? [00:53:01] Speaker 05: Well, and hopefully this is responsive, is that I think the district court [00:53:08] Speaker 05: Let's say he was analyzing, this is now different than the facts. [00:53:12] Speaker 05: But let's say that the court was analyzing whether or not to accept the plea and he basically had full independent authority. [00:53:19] Speaker 05: He very well might be justified in rejecting the plea. [00:53:23] Speaker 05: But at the plea stage, his discretion is greatly capped. [00:53:27] Speaker 05: That's not true here. [00:53:28] Speaker 05: And so I think that explains the different outcomes. [00:53:36] Speaker ?: OK. [00:53:38] Speaker 04: any further questions? [00:53:40] Speaker 05: Thank you. [00:53:41] Speaker 05: Thank you, Your Honours. [00:53:42] Speaker 01: Thank you. [00:53:52] Speaker 04: We'll give you two minutes on rebuttal. [00:53:56] Speaker 01: I guess first, I'd like to [00:54:01] Speaker 01: agree with government counsel regarding the fact that the indictment doesn't die and disappear. [00:54:10] Speaker 01: A lot of discussion about the nature of habeas proceedings and the fact that civil rules apply. [00:54:18] Speaker 01: But they're very much treated with consequences in the criminal case. [00:54:26] Speaker 01: Generally, a motion to vacate the sentence [00:54:29] Speaker 01: sentence is vacated. [00:54:30] Speaker 06: Just to give one example, criminal defendant has a right to an attorney, but a habeas petitioner doesn't. [00:54:40] Speaker 01: That may be one of the differences and they are [00:54:46] Speaker 01: as said its own beast. [00:54:48] Speaker 01: But what I'm saying is that some judges handle them on the criminal docket, some judges handle them on a civil docket. [00:54:55] Speaker 01: They're not all handled on a civil docket. [00:54:57] Speaker 01: Civil rules do apply, criminal rules do apply. [00:55:00] Speaker 01: On 2255 is to vacate a sentence, vacate a conviction. [00:55:07] Speaker 01: If you prevail on that, then the case [00:55:09] Speaker 01: If the conviction is vacated, then obviously the indictment is very much alive. [00:55:14] Speaker 01: So the government continues to have control. [00:55:17] Speaker 01: It continues to be a live issue. [00:55:19] Speaker 01: The text inclusion of the word indictment and the lack of any of the temporal limitations in the other rules, as the government counsel cited, is part of the basis for having Rule 48 authority. [00:55:37] Speaker 01: past conviction. [00:55:41] Speaker 01: And it's hard to reconcile, Rinaldi, if you're going to say that there is discretion and authority to make a rule 48A motion post-conviction, post-sentencing, post-appeal, and there's still a 22-5, then we're arbitrarily just [00:56:05] Speaker 01: without Congress's intent, without Drifter's intent, without anything specific in the rule, we are arbitrarily setting a limit that doesn't exist anywhere. [00:56:19] Speaker 00: Thank you. [00:56:19] Speaker 01: Thank you. [00:56:31] Speaker 03: I just like to briefly talk about a rule 33 and waiver. [00:56:36] Speaker 03: So rule 33 allows a defendant to move for a new trial within three years after the verdict or finding of guilty. [00:56:43] Speaker 03: And that could be well after the conviction has become final on direct appeal, which suggests that there still exists some underlying charging instrument [00:56:52] Speaker 03: under which a defendant could receive a new trial even after the conviction has become final on direct appeal. [00:56:58] Speaker 03: And the second issue about the related issue about waiver is, as this court recognized in Smith, in finding that a district court has jurisdiction over Rule 48A motion after a conviction has become final on direct appeal, the defendant could move under Rule 33. [00:57:13] Speaker 03: The government could waive the time limitation. [00:57:18] Speaker 03: That doesn't bind the district court on the merits of the motion. [00:57:21] Speaker 03: But it doesn't allow the district court to deny it as untimely, as the Supreme Court said in McDonough and Wood. [00:57:31] Speaker 03: And so to here, to the degree that the parties waived any implicit time bar by the government moving the defendant agreeing to that, that doesn't bind the district court's ruling on the merits. [00:57:44] Speaker 03: But it doesn't allow the district court or this court to sui sponte deny the motion as untimely. [00:57:54] Speaker 04: Mr. Katzoff and Mr. Wordy, you were appointed by the court to represent, to represent the different parties in these cases and the court thanks you for your assistance. [00:58:07] Speaker 04: Cases submitted.