[00:00:00] Speaker 04:
Case number 23-3187, United States of America versus Jonathan Joshua Munafo at Bellinth.

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Mr. Lerman for the at Bellinth, Mr. Duchevsky for the Epple.

[00:00:15] Speaker 01:
Good morning, Mr. Lerman.

[00:00:18] Speaker 00:
I'm Kevin Lerman.

[00:00:19] Speaker 00:
I represent Jonathan Munafo.

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We're asking the court to find breach where the government rely on alleged association and abstract beliefs to seek a higher sentence after reserving the right only to prove up misconduct related to the 111 and 231A3 charges Jonathan Monafo pleaded guilty to.

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Relatedly, we ask the court to vacate the sentence as it was imposed in a proceeding that violated the First Amendment.

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Since there's overlap between both claims, I'd like to start with the First Amendment conduct, because I think at this point, we're agreed that three out of four areas of advocacy implicate the First Amendment.

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And I'd like to attempt to convince Your Honors that the fourth area, the allegation that Jonathan Monafo had somehow joined a group faction while at the D.C.

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jail, also implicates the First Amendment.

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Regarding that,

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Can I ask you a procedural question about your breach of the plea agreement claim on this?

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You are not asking to withdraw this plea.

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You're saying there was a breach of the plea agreement, but you don't want to withdraw the plea.

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You just want us to remand for re-sentencing.

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That's correct, Your Honor.

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So basically you're saying specific performance, like you promise not to say these things.

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We should get a new sentencing hearing where you don't say these things.

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You, defense counsel raised these issues before the district court, and the district court addressed them and said, I'm not relying on these issues, like the issues about the First Amendment, I guess, right to associate with front row peep joes and things of that nature.

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The district court said,

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I hear you.

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I don't see this as a breach of the plea agreement.

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I'm not relying on that stuff.

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So I don't understand why we should remand for him to say that again, given that he already heard these arguments that I'm not relying on them.

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If all you want is another sentencing, I think this has already happened exactly the way you wanted it to happen.

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You raised it and he didn't consider it.

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Judge Pan, I would push back against that because there were multiple issues that we raised.

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One of the issues that the court said that he wasn't relying on was the statements that could be heard on video.

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January 6 and the court said that he wasn't relying on on that and that's not something that plays a part in our brief but if you look at the record it's extremely difficult to parse out what the court would have relied on and what the court didn't rely on at appendix 154 we warned that the government was relying on unreliable information then at page 156

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The court said, this doesn't look like speculation to me.

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At 158, it notes that the government's allocution was a forceful one.

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And at 159, it says, as long as it's supported, thoughtful, and articulate, then the government's done its job.

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None of this associational conduct.

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Didn't he also say, though, I'm just sentencing him based on his conduct?

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His conduct, this is on 157.

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He doesn't need any imputation.

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His conduct is as serious enough as it is.

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And we saw it, and that's what I'm relying on when I impose sentence.

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Well, he said that elsewhere in the record, Your Honor, and then he said, and the question is, is there anything else about this defendant that warrants a sentence higher or lower?

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And then when the judge pronounced a sentence, the judge states, based on the spectrum of people I've sentenced, I can't go any lower.

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And this was, for any impartial observer of this sentencing proceeding,

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Anyone could see that the government places this claim that these four dimensions of First Amendment implicating conduct at the forefront of its sentencing allocution and says repeatedly, this shows a lack of respect.

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For the law so it's I think that the record essentially it's it's too dirty and difficult to dissect so I don't think that we that we obtain specific performance and I would also stress very strongly.

[00:04:39] Speaker 02:
So I think I think the key question is it what specifically would you point to.

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to show that the district court, not the government, that the district court considered anything other than his conduct.

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Is it the statement that, looking at the spectrum of other defendants that I've seen, or is there a more affirmative statement suggesting that Judge Boasberg considered something other than the defendant's conduct?

[00:05:03] Speaker 00:
Well, I think the court had to consider something other because under 3553A1, it says history and characteristics that the court had to consider.

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And the court also stated there's a lot of violence in your history.

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And you'll recall that this is someone who entered custody in 2021 as in criminal history category one.

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So is that a reference to actual physical violence against someone when this

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The offense here was a weaponless physical contact with a riot officer's helmet and chest armor.

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And in terms of what the court referenced for violence, again, I think any impartial observer would note that, or would have at least the impression that the first amendment played some role.

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I'm sorry?

[00:05:55] Speaker 04:
He punched a police officer twice.

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That's the underlying conduct.

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That's correct.

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That's violent.

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And that's one offense.

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What the court referenced is there's a lot of violence in your history.

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And the court had just listened to the government's allocution and the baseless claim that Jonathan Munafo had somehow joined a group faction while in the DC jail pod.

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Everyone in the sentencing hearing and everyone today knows that the claim of someone joining a group

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faction and engaging in some kind of conduct, which again, the government's very careful not to actually claim that it knows that there's some specific fact of any violent conduct.

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He has alleged to say that it's believed that he's participated in this.

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And so I think that, and I'd like to return one step before that, in terms of when the First Amendment's implicated, the core of the First Amendment is participation in political speech.

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And so one of the things that the Supreme Court has said, the freedom of speech is delicate

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and vulnerable, as well as extremely precious in our society.

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So even the threat of sanctions may deter exercise as politely as actual sanctions.

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So anyone observing this proceeding could reasonably understand that Jonathan Monofo, when the most powerful prosecutorial department in the world is accusing him of what it calls misconduct in the form of associating

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with other supporters of the Republican presidential candidate or calling into a line where someone's doing prayer vigils.

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And I think one of the things to infer what the court decided upon, the court ultimately does give a sentence very close to what the government requested.

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And I think one of the

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One of the disturbing things about the government's advocacy is that there's a comment about this concept of the Boasberg discount that's sandwiched between First Amendment violating advocacy.

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That comment is as if to say, look, Jonathan Monafo and these prayer circle gulag advocates think your honor is on their side.

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They want the discount.

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They don't respect the law.

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They don't respect you.

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So that put the court in an extremely difficult position.

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I see that my time is up for this.

[00:08:30] Speaker 01:
Let me ask you a question.

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This is coming to us from a plea agreement where the right to appeal, the sentence was largely waived.

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What is the standard that we apply if we're declining to enforce the otherwise applicable waiver?

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Colorably alleged to rest on a constitutionally impermissible factor was in Guyan, but that was a case in which the issue was preserved.

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So is it?

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And there's also this question about the appearance.

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How do you roll these all into what should we be, through what lens should we be reviewing the claim that you're making?

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We think that the court should adopt a standard similar to what the Second Circuit's applied in Cava and Liung in these cases where

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the sentence appears to rest on some other constitutionally impermissible factor and that's just based on what an impartial observer might perceive observing the hearing, especially again.

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But how do you give weight or operational role to the fact that this is a waiver, there's a plea waiver here.

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So you're referring to a standard, the standard on

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review of a non-waved matter.

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And so we think that the miscarriage of justice standard plainly applies and the court can bypass the waiver, especially given that the government was on notice that this type of advocacy

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violated precedent.

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It wasn't lawful to attack First Amendment associations.

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And it's not lawful to ask the court, or I'm sorry, it's not lawful for a court to base a sentence on unreliable and baseless allegations.

[00:10:38] Speaker 01:
So would it be that the defendant colorably alleged that the sentence has the appearance of resting on First Amendment protected activity?

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I'm just trying to figure out how we cash out the miscarriage of justice in the particular context.

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of the claim that you're raising.

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Because you're not arguing that, well, are you arguing that Judge Boasberg actually relied on, or I take your main argument to be that there's an appearance that Judge Boasberg relied on first amendment protected activity, that on a preserved appeal that alone potentially would be enough, but this is not, this is from a waived appeal.

[00:11:21] Speaker 00:
The waiver issue, I think that if there's a colorable allegation, especially given the importance of First Amendment protections, I think that's sufficient.

[00:11:37] Speaker 01:
Is it a colorable allegation that the sentence did rest on First Amendment activity or a colorable allegation that the sentence

[00:11:49] Speaker 01:
had the appearance of resting on a First Amendment allegation, a First Amendment activity?

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I think that's the rule that we're proposing, that if it's a colorable allegation, that it had the appearance, because otherwise it would incentivize the government to essentially gamble on putting this content out there.

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And the court could say, you know what?

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I didn't rely on that.

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And it's a different standard.

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Obviously, there's some overlap.

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But when the Supreme Court,

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sent Santabello back.

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The court there had said, I'm not relying on anything that the government is saying.

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And I'm just sentencing purely based on what I desire to sentence.

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And that wasn't enough for the Supreme Court, given the importance of constitutional rights.

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Now there, that was the right to trial, the broader right to due process.

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But the right to First Amendment, especially when it's an amendment that prohibits, it's a stop on government action.

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So I think that there's ample basis to apply the miscarriage of justice.

[00:12:59] Speaker 01:
And I take it also, Judge Penn was asking about this at the outset, you're arguing that the government did not adhere to the terms of the plea agreement and therefore you don't need to show anything further to potentially get

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a re-sentencing, that I gather your argument being that voids the waiver.

[00:13:26] Speaker 01:
But what provision of the plea agreement was violated?

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Because the agreement expressly permits both parties at sentencing to offer relevant facts, including any misconduct not described in the charges to which the defendant is pleading guilty,

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So our argument focuses mainly on Clause 7, the reservation of allocution, and what we understood the government to have reserved

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is an allocation focused on misconduct and not something that could swallow up the other provisions of the plea agreement.

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So misconduct had to actually be something unlawful.

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It couldn't be something that didn't happen, which is in the case of the group faction allegation.

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And it couldn't be something that the government has no lawful right to prohibit.

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in the first place.

[00:14:23] Speaker 01:
Wait, you said, and I just want to give you a chance to correct it, you said that misconduct has to be something unlawful.

[00:14:32] Speaker 01:
It has to be something that, does it have to be something unlawful?

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I mean, lack of remorse, for example, is something routinely considered in sentencing.

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It's something unlawful about lack of remorse.

[00:14:46] Speaker 00:
So one of the things that we did in our 28J when we added Fisher to the record is that all these provisions have to be read in their context.

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And so this case changed from a case alleging the corrupt obstruction of justice to a case that is focused on

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these two charges, which if we look at the elements of the charges in appendix 55 and 56, these are physical conduct charges.

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And so maybe I would walk that back partially because the conduct didn't necessarily have to be unlawful standing alone, but if the government drafted clause specifically says,

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That they can address misconduct not described in the charges to which your client is pleading guilty.

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We understood that aside from the custom of what happens when a pre sentence investigation is done and a pre sentence report is prepared that goes through.

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criminal history, we obviously understood that process would happen.

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But any misconduct, we understood that, especially in the context of these cases, which again, that's part of why we cite to the cases of Ryan and Rhodes to show that courts at this time, and the government was litigating these cases,

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We're very careful in allowing what the government could introduce.

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In the Ryan case, the court issued an order saying you can't use the word insurrection unless outside of the jury that has been shown that this is what's happening.

[00:16:24] Speaker 04:
So essentially though, we have a broad provision in this plea agreement and you have a plea waiver where you're not supposed to be appealing

[00:16:36] Speaker 04:
your sentence unless it's a vulnerable constitutional violation.

[00:16:42] Speaker 04:
But your claim is there's an inaccuracy in the allocution and you're trying to smuggle this inaccuracy in the allocution claim to avoid the plea waiver into a constitutional violation?

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Because you cannot appeal your sentence based on just a misstatement in the allocution.

[00:17:06] Speaker 04:
it has to be a codable constitutional violation.

[00:17:08] Speaker 00:
That's right.

[00:17:09] Speaker 04:
And you're trying to make it seem like a breach of the plea agreement, but this plea agreement's really broad.

[00:17:15] Speaker 00:
We think it's both things and it's not just an inaccurate, it's both inaccurate information and it's information that's in the front to the First Amendment rights.

[00:17:24] Speaker 04:
But you've waived the ability to appeal inaccurate information.

[00:17:28] Speaker 04:
That's definitely covered in your plea waiver.

[00:17:30] Speaker 00:
And that's why we introduced

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a case that was just decided, it's not binding on this court, Mojica Ramos, which shows that the government can exacerbate a breach of the plea agreement with this inaccurate information.

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So once they've violated the constitutional rights of the person being sentenced, that can be exacerbated.

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And the plea breach.

[00:17:55] Speaker 04:
Can I ask you a question about your other claim, which is your claim that

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the government was required to dismiss the superior court case.

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And it was a breach of the plea agreement that they failed to do so.

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Because looking at the record on that, the sentencing transcript at JA 167 and 168, I see a procedural problem with that claim.

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Because the way this came up was at sentencing, the defense attorney raised, apparently for the first time, the government

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at this time is required to move for the dismissal of this superior court case.

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And then the government says, you're throwing someone on scene.

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This wasn't part of something they requested of me beforehand.

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The court says, let me check.

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Let me look at the agreement.

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Then the government says, this is something that should be done through superior court, not through district court, because the US Attorney's Office has a different division for this.

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And then the court says, I think I'm not going to say anything about that, Mr. Nisgar.

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If you are seeking that dismissal, I think you should talk to Mr. Murphy or someone in the Superior Court Division of the U.S.

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Attorney's Office.

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And then defense counsel says, okay.

[00:19:09] Speaker 04:
He says, okay.

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So the court says, I'm not going to rule on this.

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And defense counsel says, okay.

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So there's no ruling here for us to review on this claim.

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And it seems to me that if you wanted to preserve this issue for appeal, defense counsel should have said,

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respectfully Judge Boesberg, we don't think we need to go to the Superior Court Division because we're entitled under this plea agreement for dismissal of this charge right now.

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And then we would have a ruling to review.

[00:19:37] Speaker 04:
But since he didn't do that, why is this preserved for us to review?

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There's no ruling here.

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And defense counsel agreed that there should be no ruling.

[00:19:46] Speaker 00:
I read that a little bit differently, Judge Pan, because I think that the government raised one claim that

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that this charge wasn't related to January 6th, and the court said, hold on a minute, it doesn't have to be related, there can be an agreement to dismiss something else, and then we were referred to get the dismissal by the Superior Court Division, so I think it would be.

[00:20:12] Speaker 04:
Where do you see a ruling by the District Court that you are correct, that the plea agreement required dismissal?

[00:20:20] Speaker 00:
So I see more of an abandonment of the issue by the government at Appendix 170.

[00:20:25] Speaker 00:
That's something that would need to be done through superior court.

[00:20:30] Speaker 00:
It's not that we need to go litigate the breach.

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The plea agreement was accepted by this court.

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The parties to the agreement were there in front of the court.

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And the government hears that it, the government finds out that the charge didn't have to be related to, and that's what we understood all the time, the whole time.

[00:20:48] Speaker 00:
There was only one other charge

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And everyone knew that it was pending.

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And also, that's what we understood from the circumstances, because Jonathan was in Washington, D.C.

[00:21:02] Speaker 04:
for months.

[00:21:03] Speaker 04:
So just to be clear, your argument then relies upon an understanding that the government conceded and the court said, you're right, just go to Superior Court and get that dismissed?

[00:21:13] Speaker 00:
That's how I understood it, or I think that there's an implicit ruling.

[00:21:17] Speaker 04:
And so in order to win, we have to read that the way you just read it?

[00:21:21] Speaker 00:
No, I think that then I'd encourage the court to understand that the court made an implicit ruling.

[00:21:28] Speaker 00:
I'm not going to say anything further.

[00:21:30] Speaker 00:
It doesn't mean that I don't think that this needs to be dismissed.

[00:21:35] Speaker 00:
It just means I can't do this from district court.

[00:21:38] Speaker 00:
And so the dismissal has to be done in Superior Court.

[00:21:41] Speaker 04:
Why doesn't this mean you need to?

[00:21:43] Speaker 04:
Talk to the U.S.

[00:21:44] Speaker 04:
Attorney's Office about this before I need to rule on it, including conferring with the Superior Court Division.

[00:21:53] Speaker 00:
I could understand.

[00:21:55] Speaker 00:
I think if there's two ways to look at it, I think that with Rule 51, I think that giving notice to the court of what the issue is and seeking a ruling, I think that was preserved and I think it'd be

[00:22:10] Speaker 00:
It would be a miscarriage of justice to ignore that, because we took this case essentially as a volunteer appointment.

[00:22:17] Speaker 00:
And if we have to go get admitted to another court to enforce a plea agreement, then everyone's right there.

[00:22:22] Speaker 00:
I think that would be an excessive view of the record.

[00:22:25] Speaker 01:
What about the government's argument, assuming that there was no failure to preserve?

[00:22:30] Speaker 01:
The government says that the plea agreement clearly didn't require the charge to be dismissed at all, because I think that you or your predecessor was relying on the meaning of will not be charged.

[00:22:46] Speaker 01:
And this already was charged.

[00:22:48] Speaker 01:
This was pending.

[00:22:51] Speaker 00:
Right, and I think we've both submitted our interpretation of what will not be charged means.

[00:22:57] Speaker 00:
And I think there are verbs that are kind of one-time thing verbs, and there are verbs that are continuing.

[00:23:02] Speaker 00:
So will not be charged, they're promising not to either file charges or to dismiss charges that are pending.

[00:23:12] Speaker 00:
So I think this is definitely not, and even the authority that the government goes to,

[00:23:19] Speaker 00:
to say that they have a Supreme Court case from 18 something, I think there's a logic fallacy operating there because yeah, charging can mean the initiation of charges and it can mean placing someone in the state of charges.

[00:23:37] Speaker 00:
It's definitely a million miles away from a one time thing verb like amputate or something like that that you can't come back from.

[00:23:46] Speaker 01:
I thought their clearest argument was that the plea separately talks about dismissing and further prosecuting.

[00:23:55] Speaker 01:
And then there's this language about will not be charged.

[00:23:58] Speaker 01:
So it seems like if the Superior Court pending case would be addressed at all, it would be addressed as dismissing or not further prosecuting rather than not charging, given that that was already charged.

[00:24:15] Speaker 00:
I think there's a couple ways to understand that, and I think all of them favor understanding that the case had to be dismissed by the government.

[00:24:27] Speaker 00:
First, charge, I think in this case, it likely meant very close to the same thing as prosecute, possibly broader, because if somebody, if you're promising that somebody will not be charged, that could apply, again,

[00:24:44] Speaker 00:
charges that haven't been filed or charges that have been filed.

[00:24:48] Speaker 00:
And if there's two views, then the view has to be construed against the government.

[00:24:56] Speaker 02:
The other aspect of this particular clause is it requires, it says, an offense about which, basically, we were made aware by your client.

[00:25:06] Speaker 02:
So I certainly understand that they're aware that they've charged Mr. Munafo.

[00:25:13] Speaker 02:
But doesn't that language envision that it is something that the defendant is coming to the prosecutors and saying, I did this?

[00:25:23] Speaker 02:
If I plead guilty here, you will dismiss the charges.

[00:25:28] Speaker 02:
And it sounds like that type of thing did not happen.

[00:25:32] Speaker 02:
In other words, Mr. Monofo didn't, these are still pending charges in a different court.

[00:25:38] Speaker 02:
It's not as though he came in and described a set of facts that could, you know, essentially partially admitting that he engaged in this conduct in exchange for immunity.

[00:25:51] Speaker 00:
Why isn't that the way to read this?

[00:25:53] Speaker 00:
I don't think that charge seems to be written very broadly, and I think even Your Honor's question required a lot more words than is actually in the agreement, just like the government's.

[00:26:08] Speaker 00:
contrary view to the one we presented.

[00:26:10] Speaker 00:
So I think that this is kind of like certain situations whether a claim is exhausted and I think it should be construed broadly in favor of the person that the government with that clause gave immunity for those charges that it knew about.

[00:26:28] Speaker 00:
So I think generally they may be made aware

[00:26:33] Speaker 00:
in a number of ways, which is, I think, why they left it so open.

[00:26:37] Speaker 00:
There was other things in the plea agreement that required, for example, the defendant to turn over passwords to social media.

[00:26:49] Speaker 00:
And that was very precise.

[00:26:50] Speaker 00:
So I think it can be read that the broad language left open broad interpretation.

[00:26:58] Speaker 01:
Thank you.

[00:27:18] Speaker 03:
Good morning.

[00:27:19] Speaker 03:
Good morning and may it please the court, Reuven Deshefsky for the United States.

[00:27:23] Speaker 03:
The government fulfilled its obligations under the plea agreement.

[00:27:27] Speaker 03:
It dismissed the eight remaining counts of the indictment.

[00:27:31] Speaker 03:
It advocated for the agreed upon sentencing guidelines range and in fact, Monopho received a sentence within that range.

[00:27:39] Speaker 03:
The statements made by the government at sentencing that Monopho now challenges on appeal did not breach the agreement.

[00:27:47] Speaker 03:
And that's because the parties did not agree to limit their allocutions in any way that would implicate or prohibit the making of these statements.

[00:27:57] Speaker 03:
His arguments to the contrary are untethered from the actual language of the agreement and should be rejected.

[00:28:04] Speaker 03:
His sentencing challenge, which is based on those same statements, does not fare any better.

[00:28:09] Speaker 03:
As a preliminary matter, he waived his right to appeal, and that waiver should be enforced.

[00:28:16] Speaker 03:
He doesn't contest the validity of the waiver.

[00:28:19] Speaker 03:
He doesn't contest that his sentencing challenge falls within the scope of the waiver.

[00:28:25] Speaker 03:
Rather, he asked the court to circumvent the waiver based on the miscarriage of justice exception, and that exception, which this court has found to be very narrow, is not applicable here.

[00:28:36] Speaker 03:
There was no miscarriage of justice.

[00:28:38] Speaker 03:
The 33-month sentence imposed by the district court was within the guidelines.

[00:28:43] Speaker 03:
In fact, it was below the midpoint of the agreed-upon guidelines range.

[00:28:47] Speaker 03:
And Monopho expressly agreed in the plea agreement that any sentence within that range would be reasonable under the statutory sentencing factors.

[00:28:58] Speaker 03:
He has not and cannot colorably allege that this within-guidelines sentence rests on constitutionally impermissible factors.

[00:29:08] Speaker 01:
What about the appearance of relying on First Amendment protected activity and how does that affect the standard that we should apply in reviewing a waived challenge, assuming that we think it is waived?

[00:29:29] Speaker 03:
The standard laid out by this court in Guian asks whether or not the sentence itself rests on constitutionally impermissible factors such as race or religion.

[00:29:42] Speaker 03:
It doesn't ask about the appearance of impropriety.

[00:29:47] Speaker 03:
And the court has noted that this exception is very narrow.

[00:29:52] Speaker 03:
And that's because it's important that plea bargains are given weight.

[00:29:58] Speaker 03:
When a defendant agrees to waive their right to appeal, that is part of what they're giving up and incentivizes the government

[00:30:08] Speaker 03:
to enter into plea agreements.

[00:30:10] Speaker 03:
And this court has noted that in multiple cases.

[00:30:14] Speaker 03:
And so by degrading the power of the waiver, by expanding the miscarriage of justice exception beyond what this court has already recognized, would do disservice to defendants generally.

[00:30:29] Speaker 01:
What about, I mean, in the CAVA case, and I know it's not finding the second circuit case, you have a dynamic that is

[00:30:40] Speaker 01:
plausible where the Court of Appeals is unwilling to accuse the district judge of bigotry but sees a problem and says, well, there's an appearance.

[00:30:53] Speaker 01:
Do you not see any role for the appearance standard?

[00:31:00] Speaker 01:
You asserted that it has to actually

[00:31:03] Speaker 01:
rest on an impermissible factor.

[00:31:05] Speaker 03:
First, I would note, and I think Your Honor noted this earlier, that CABA is not a plea breach case.

[00:31:13] Speaker 03:
So it's already getting to the merits.

[00:31:16] Speaker 03:
But I think that's right.

[00:31:18] Speaker 01:
So the question is, if we thought that had the right standard, how would that translate?

[00:31:25] Speaker 03:
If you thought that was the right standard, I would point to CABA itself and then also cases that apply the CABA standard.

[00:31:33] Speaker 03:
And these are cited in our brief.

[00:31:35] Speaker 03:
This is Quang Van.

[00:31:38] Speaker 03:
another case, which is Al Badani, Sixth Circuit and Eighth Circuit cases.

[00:31:44] Speaker 03:
And all three of those cases focus the inquiry on what the court did in imposing the sentence and not what the government said.

[00:31:53] Speaker 03:
And that's important here, regardless of whether we're talking about the appearance of impropriety or whether the sentence actually rests on improper factors.

[00:32:03] Speaker 03:
And so the Second Circuit and CABA, it was dealing with a situation in which

[00:32:08] Speaker 03:
the district court explicitly said that it was going to impose a sentence to deter people in that same background, same national origin.

[00:32:21] Speaker 03:
And so the challenge statements in that case were problematic and they came from the district court judge itself when it was explaining the sentence imposed.

[00:32:32] Speaker 03:
And the Sixth Circuit and the Eighth Circuit cases I think are

[00:32:35] Speaker 03:
Illustrative here because in those cases there there were also statements made by the district court that according to the 6th circuit might have raised the eyebrow of a reasonable observer.

[00:32:47] Speaker 03:
But in applying the rule, they still looked at the explanation of the district court.

[00:32:52] Speaker 03:
and found that there was no problem there.

[00:32:54] Speaker 03:
They affirmed the sentence because it was clear based on the explanation of the district court that even though they had made those remarks, even though they had made those statements that may raise an eyebrow, the sentence was actually based on proper sentencing factors.

[00:33:12] Speaker 03:
And so if the court were to want to apply the CABA rule either

[00:33:16] Speaker 03:
to expand the miscarriage of justice exception to waiver or on the merits, I think the two things that are important there are the inquiry focuses on the court statements and even where there might be a statement from the court that is unreasonable, which is not the situation here, the courts still go on to look at maybe the totality of the circumstances

[00:33:42] Speaker 03:
or just the clear explanation of the court as to why it was imposing the sentence that it did.

[00:33:47] Speaker 02:
Can you address the charged with issue in particular?

[00:33:50] Speaker 02:
Isn't it a completely normal usage of those terms to refer to sort of an ongoing status and not merely the act of filing charges?

[00:34:01] Speaker 02:
I mean, for example, wouldn't it be a totally normal thing to say that Mr. Monofo is charged with misdemeanor assault in DC Superior Court right now?

[00:34:10] Speaker 03:
So I think Monopho and the government disagree about what the word charged with means.

[00:34:20] Speaker 03:
I'm asking why his reading is unreasonable given that this is a plea agreement.

[00:34:26] Speaker 03:
And so I think that there are a number of factors that support our interpretation of what that means.

[00:34:35] Speaker 03:
First of all, the future looking will not be charged.

[00:34:39] Speaker 03:
It's anticipating future action.

[00:34:41] Speaker 03:
It's anticipating the government doing something in the future.

[00:34:44] Speaker 03:
And I think the only reasonable interpretation of that is looking to future action by the government to commence proceedings.

[00:34:54] Speaker 02:
But then there are also the other- If they take him to trial tomorrow.

[00:34:56] Speaker 02:
And someone walked in and said, what's he charged with?

[00:35:00] Speaker 02:
I think we'd all understand what they were asking, and they would say he's charged with a misdemeanor assault.

[00:35:08] Speaker 03:
And I disagree.

[00:35:10] Speaker 03:
I think the legal meaning of the words are clear.

[00:35:15] Speaker 03:
But also, as the court noted earlier in the argument,

[00:35:22] Speaker 03:
There are other statements in the plea agreement, other words in the plea agreement that also underscore that this meaning, that the government's interpretation of the plea agreement is the only reasonable one.

[00:35:35] Speaker 03:
And that is in the preceding paragraph where the government explicitly made the promise to dismiss other counts of the indictment and not to further prosecute Monopho for conduct

[00:35:50] Speaker 02:
within the statement of offense and so I certainly appreciate that argument and I guess this might be more of a comment than a question but that would you know go a long way if we were interpreting a statute these kinds of negative inferences and things like that but this is a plea agreement and it seems to me the onus should be on the government to be more clear about it could also said we will not initiate new charges against you

[00:36:14] Speaker 02:
There's just so many ways this could have been much clearer.

[00:36:17] Speaker 02:
And I think it's expecting a lot of a criminal defendant to arrive at your reading.

[00:36:22] Speaker 02:
Now, as Judge Pan has suggested, maybe you have stronger arguments.

[00:36:26] Speaker 02:
But this is the one you made in your brief.

[00:36:28] Speaker 02:
And I'm just not sure this mode of argument accounts for the fact that this is a plea agreement that we can strew against the government.

[00:36:37] Speaker 03:
So I certainly agree, the case law is clear.

[00:36:40] Speaker 03:
Any ambiguity is construed against the government.

[00:36:43] Speaker 03:
But I would note also that Monopho has been represented by counsel the whole time.

[00:36:47] Speaker 03:
At the end of the plea agreement, they both sign attesting to the fact that they reviewed this together.

[00:36:55] Speaker 03:
And this language has a clear legal meaning that is supported by the context and other parts of the plea agreement.

[00:37:05] Speaker 01:
I have a pair of questions.

[00:37:07] Speaker 01:
If we were to agree with Manifold that the plea agreement required the dismissal of this DC assault charge, how would that work in practice?

[00:37:18] Speaker 01:
Would your office just communicate internally and dismiss the charge, or would the federal district court on remand have to order you to ask the DC Superior Court

[00:37:32] Speaker 01:
to dismiss it or what's the mechanism there as you understand it?

[00:37:37] Speaker 01:
And I realize this is counterfactual to your position.

[00:37:39] Speaker 03:
If the court finds that the language is ambiguous, I think the next step would be to remand to the district court to allow the government to dismiss the superior court charge in accordance with this court's interpretation of the plea agreement.

[00:38:00] Speaker 03:
And I would note, I'm sorry.

[00:38:02] Speaker 01:
No, go ahead.

[00:38:02] Speaker 03:
I would note there as well, and I don't think that Menafo can test this, that this is a collateral obligation and would not, if the court does go that route, it would not require reopening sentencing or anything like that.

[00:38:17] Speaker 01:
And at the sentencing, Judge Pan had raised the discussion at the sentencing, when Manafort asked that the DC assault charge be dismissed, the government there argued this isn't the right place.

[00:38:32] Speaker 01:
This court can't do that.

[00:38:35] Speaker 01:
That would have to happen for the Superior Court.

[00:38:37] Speaker 01:
But the government at that point did not argue

[00:38:41] Speaker 01:
The plea agreement doesn't even cover that because of the meaning of will not be charged.

[00:38:47] Speaker 01:
The point that you're making now, is that a preservation problem for you?

[00:38:52] Speaker 01:
Does that mean you forfeited your argument about the plea agreement?

[00:38:58] Speaker 03:
I don't think so.

[00:38:59] Speaker 03:
And the reason for that is, as Judge Pan pointed out, district court didn't make a ruling.

[00:39:05] Speaker 03:
And I don't think any of the parties, including the district court, were

[00:39:09] Speaker 03:
addressing this issue with the plea agreement open before them.

[00:39:12] Speaker 03:
And I think that is evident from the record.

[00:39:16] Speaker 03:
And once the court says, let me take a look, that's the end.

[00:39:21] Speaker 03:
The next thing that Chief Judge Bozerberg said was, that's something that, I'm sorry, I think I'm not gonna say anything about that.

[00:39:30] Speaker 03:
And so with no ruling, I don't think that there could be a preservation issue.

[00:39:38] Speaker 01:
Why didn't you argue this in your brief?

[00:39:42] Speaker 03:
It's a good question.

[00:39:43] Speaker 04:
Why didn't what?

[00:39:44] Speaker 04:
Why didn't you argue this in your brief?

[00:39:47] Speaker 04:
I just don't know if you forfeited the forfeiture argument.

[00:39:51] Speaker 04:
Although I don't see a ruling to review, so I'm not exactly sure what to do with this.

[00:39:57] Speaker 03:
I think the thing that we were focused on in the brief is the question of breach, which we don't think that there is a breach here at all with regard to this provision.

[00:40:09] Speaker 01:
Right.

[00:40:09] Speaker 01:
There doesn't need to be a ruling for review of a certain breach.

[00:40:16] Speaker 01:
The breach happens.

[00:40:19] Speaker 03:
That's right.

[00:40:23] Speaker 03:
There are no further questions.

[00:40:24] Speaker 04:
I'm sorry.

[00:40:25] Speaker 04:
What does that mean there doesn't have to be a ruling on a breach?

[00:40:28] Speaker 04:
The defendant asserts there's been a breach of the plea agreement.

[00:40:33] Speaker 04:
We need to have this charge dismissed now.

[00:40:36] Speaker 04:
The court says, I'm not going to say anything about this.

[00:40:40] Speaker 04:
I think you need to talk to the Superior Court Division.

[00:40:43] Speaker 04:
Defense counsel says, OK.

[00:40:47] Speaker 04:
Is that a breach?

[00:40:48] Speaker 04:
Or do we not know?

[00:40:50] Speaker 04:
Or what does that mean for our purposes here?

[00:40:56] Speaker 03:
I think that, as Your Honor pointed out, there was no ruling.

[00:41:00] Speaker 03:
And I believe, and I'd have to check this, but I think that we did point out that the proper avenue of addressing this would be through the Superior Court.

[00:41:17] Speaker 03:
It wasn't made as a waiver argument.

[00:41:36] Speaker 03:
So on page 43 of our brief, footnote 15, it notes that any such claim of breach should be presented to the DC Superior Court in the first instance, as only that court can affect dismissal of the charge.

[00:41:52] Speaker 01:
So in your view, is that still open to Mr. Monofo to do that?

[00:42:00] Speaker 03:
I mean, I think the issue there is that the parties disagree about the meaning of

[00:42:06] Speaker 03:
the provision, but it certainly would be open for him to ask for that.

[00:42:14] Speaker 04:
Isn't that what Judge Boesbrock contemplated?

[00:42:17] Speaker 04:
When I read this, I see him saying, I'm not going to say anything about this.

[00:42:21] Speaker 04:
Go to Mr. Murphy or the peer report division.

[00:42:23] Speaker 04:
In my mind, I'm thinking first.

[00:42:25] Speaker 04:
You need to go ask first because maybe they'll agree and dismiss this thing, so I don't have to rule on it right now.

[00:42:32] Speaker 04:
And if the charge is still outstanding, I don't see why the defendant can't now go to Superior Court Division and ask that it be dismissed pursuant to that plea agreement, because it's not as if Judge Boesberg sentenced him or anything on that.

[00:42:44] Speaker 04:
He's done nothing with that Superior Court charge.

[00:42:46] Speaker 04:
So why isn't that still open to him?

[00:42:51] Speaker 03:
I don't disagree with that point.

[00:42:53] Speaker 03:
I think that would still be open to him.

[00:42:55] Speaker 03:
And I don't know.

[00:42:56] Speaker 03:
I'm not aware of any overture made after the sentencing hearing, although it's possible that it did happen.

[00:43:05] Speaker 03:
I don't know about that.

[00:43:08] Speaker 01:
Thank you.

[00:43:09] Speaker 01:
So on that view, not only do we not need to, but we can't really reach that issue in this posture.

[00:43:24] Speaker 01:
unless I'm misapprehending.

[00:43:28] Speaker 04:
All right.

[00:43:29] Speaker 04:
Is it not right because the U.S.

[00:43:30] Speaker 04:
Attorney's Office hasn't decided whether or not to dismiss that?

[00:43:33] Speaker 04:
It hasn't been raised with the Superior Court Division or whatever?

[00:43:43] Speaker 03:
Assuming that that is correct, that it has not been raised with the Superior Court Division, I think that certainly makes sense.

[00:43:55] Speaker 03:
If there are no further questions, we would ask that the court affirm the District Court judgment.

[00:44:00] Speaker 03:
Thank you.

[00:44:06] Speaker 01:
Has Mr. Lerman reserved any time for rebuttal?

[00:44:17] Speaker 00:
Good morning once again, Your Honours.

[00:44:18] Speaker 00:
I'd like to start with the Government Council's comments on the miscarriage of justice exception.

[00:44:25] Speaker 00:
We think that the opposite of what the government assumes will happen if the miscarriage of justice exception is applied here will actually happen, because future bargains will be more efficient.

[00:44:40] Speaker 00:
And it should really be a very rare occurrence where the government engages in this type of conduct.

[00:44:47] Speaker 00:
And I think that a ruling that

[00:44:52] Speaker 00:
addresses these First Amendment violations could deter the government from engaging in this sort of conduct in the future, because when we counseled Mr. Monofo to sign the plea agreement, we assumed that the government would follow Dawson.

[00:45:11] Speaker 00:
We assumed that the government would follow this circuit's case law, including United States versus Lemon.

[00:45:16] Speaker 00:
And we assumed that the government would proceed with the utmost care, given that it was prosecuting a supporter of the opposing political party that's now in power.

[00:45:32] Speaker 00:
And so we assumed that they would follow case law, including comments from the Supreme Court that state that protecting the sphere of intellect and consciousness

[00:45:45] Speaker 00:
in the right to think and express, for example, with the reading of the book Becoming a Barbarian, which Jonathan Monafo referenced, those safeguards are essential to protect the processes that define a free society.

[00:46:00] Speaker 00:
And so we do think that that exception should apply.

[00:46:04] Speaker 01:
And I'd like to hear your view on what just transpired about whether there's further

[00:46:12] Speaker 01:
proceeding, whether in the district court or in the superior court, that would need to happen before we interpret the portion of the plea agreement about will not be charged.

[00:46:22] Speaker 00:
I don't think that that's necessary, and I think the government's view would read out the right to appeal of the judgment in this sentence.

[00:46:31] Speaker 00:
And I can clarify for the record that we contacted the U.S.

[00:46:37] Speaker 00:
Attorney's Office's Superior Court Division.

[00:46:40] Speaker 00:
We contacted the Government Sentencing Council, who's here in court today as well, and they've refused to dismiss

[00:46:48] Speaker 00:
the pending D.C.

[00:46:50] Speaker 00:
Code case.

[00:46:51] Speaker 04:
When did that happen?

[00:46:53] Speaker 00:
That occurred at the, I don't have the dates of the emails, but many, many months ago.

[00:47:01] Speaker 00:
It occurred before the filing of the brief, which is why we note on page 16 that the Superior Court Division has refused to dismiss the charge.

[00:47:10] Speaker 00:
And so we sought enforcement with the court that took the plea.

[00:47:14] Speaker 00:
And the plea agreement has to be enforced by someone.

[00:47:17] Speaker 04:
Shouldn't you have asked before the sentencing hearing?

[00:47:20] Speaker 04:
Because at that point, you hadn't done that.

[00:47:24] Speaker 04:
Judge Boasberg didn't have the record that you're now putting before us.

[00:47:28] Speaker 04:
But we're not a trial court.

[00:47:29] Speaker 04:
But you didn't, according to this transcript, you didn't raise this issue until the sentencing hearing.

[00:47:37] Speaker 04:
And at that point,

[00:47:39] Speaker 04:
federal court prosecutor and the district court were taken off guard because you hadn't raised it before.

[00:47:44] Speaker 04:
And you didn't say at that point, well, we already asked the Superior Court Division, and they said no.

[00:47:48] Speaker 04:
You just said, hey, let's dismiss this now.

[00:47:52] Speaker 04:
And both of them said, well, you have to ask Superior Court first.

[00:47:57] Speaker 04:
And you didn't do it before the sentencing hearing, which is what you should have done, right?

[00:48:01] Speaker 00:
Your honor, frankly, I'm surprised that they were off guard.

[00:48:03] Speaker 00:
And if anyone was off guard, it was what we were dealing with ahead of the sentencing was essentially an ambush with these First Amendment attacks in this case.

[00:48:15] Speaker 00:
And so we were focused on that.

[00:48:16] Speaker 00:
There was only one charge pending.

[00:48:18] Speaker 00:
We thought everyone was aware of it.

[00:48:20] Speaker 00:
And it was a final, we thought that was a final bookkeeping matter that we just wanted to make sure that that was covered on the record.

[00:48:26] Speaker 04:
And to preserve this on appeal, you could have, if you asked right after the sentencing hearing,

[00:48:31] Speaker 04:
for that superior court charge to be dismissed and they said no, then you could have filed a motion with Judge Boesberg to say we've asked, they said no, we'd like a ruling on whether the plea agreement covers this.

[00:48:41] Speaker 04:
And you didn't do that, did you?

[00:48:44] Speaker 00:
We didn't do that.

[00:48:45] Speaker 00:
We thought that it was preserved.

[00:48:47] Speaker 00:
Again, we were thinking in terms of what the, of Rule 51, that it was brought to the court's notice.

[00:48:54] Speaker 00:
And again, I had understood the court as- But sometimes you have to reassert.

[00:48:59] Speaker 04:
Like if a court says,

[00:49:01] Speaker 04:
I'm not going to rule on this.

[00:49:03] Speaker 04:
And you say, OK.

[00:49:04] Speaker 04:
That changes things.

[00:49:07] Speaker 04:
You did raise it.

[00:49:08] Speaker 04:
But once the court says, I'm not going to rule on this, and you agree, then it seems that you've agreed to have no ruling.

[00:49:16] Speaker 04:
You have it preserved.

[00:49:18] Speaker 00:
The best answer that I have is just that we understood the government as having raised one simple objection and accepted that it was being referred for dismissal.

[00:49:30] Speaker 00:
And so it was only when we followed up over emails and they refused that we realized that this was an issue that needed to be raised on appeal.

[00:49:41] Speaker 01:
All right.

[00:49:41] Speaker 01:
Thank you.

[00:49:41] Speaker 01:
The case is submitted.

[00:49:42] Speaker 00:
Thank you.