[00:00:00] Speaker 00: Case number 23-3214, Edda. [00:00:04] Speaker 00: United States of America versus Joel Sordo, a balance. [00:00:08] Speaker 00: Ms. [00:00:08] Speaker 00: Biderman, for the balance. [00:00:10] Speaker 00: District court's failure to hold a hearing and ineffective assistance of counsel regarding Spanish tapes. [00:00:15] Speaker 00: Ms. [00:00:15] Speaker 00: Fernandez, for the balance. [00:00:17] Speaker 00: Ineffective assistance of counsel for failure to pursue entrapment and selective enforcement. [00:00:22] Speaker 00: Mr. Cahill, for the evidence. [00:00:27] Speaker 01: Good morning, Judges Wilkins, Rao, and Walker. [00:00:30] Speaker 01: I'm Donna Biederman. [00:00:32] Speaker 01: I'm here arguing on behalf of all three of the appellants on the issues of the fact that there was not a hearing upon remand and the Spanish language tapes. [00:00:44] Speaker 01: Ms. [00:00:44] Speaker 01: Hernandez will then argue on the issue of entrapment and on selective enforcement. [00:00:50] Speaker 01: In 2017, this court sent this case back to the district court for a hearing and asked the district court to answer three questions. [00:01:00] Speaker 01: The district court did not hold a hearing. [00:01:02] Speaker 01: The three attorneys filed affidavits. [00:01:06] Speaker 01: That's the only additional evidence in this case at all. [00:01:10] Speaker 01: and the district court did not hold the hearing and denied it. [00:01:15] Speaker 01: Those three questions that were sent back to the district court were not answered because there was no hearing here. [00:01:23] Speaker 01: So the first of those questions is why defense counsel failed to pursue entrapment. [00:01:30] Speaker 01: The second is why they did not object to the admission of the Spanish language tapes and what conversations they had with their clients [00:01:39] Speaker 01: and also whether appellants advise their counsel that the testimony was not an accurate account of the conversations. [00:01:47] Speaker 01: And the third question is the extent of the prejudice not objecting to the Spanish language tapes. [00:01:53] Speaker 01: I'm going to take those in reverse order. [00:01:56] Speaker 01: The first one being the extent of the prejudice from not objecting to the Spanish language tapes. [00:02:01] Speaker 01: There is nothing at all in the affidavits that addresses this question. [00:02:06] Speaker 01: And in fact, there couldn't be anything in the affidavits that addresses this question. [00:02:11] Speaker 01: Therefore, that question wasn't even addressed at the district court upon remand. [00:02:17] Speaker 06: Well, if you had had a hearing, what would you have put in evidence about prejudice? [00:02:22] Speaker 01: What we would have put into evidence about prejudice is that the entire case [00:02:29] Speaker 01: was changed because of the Spanish language tapes, that there was enough evidence to show that the defendants had shown up, the appellants had shown up with guns, but there wasn't enough evidence without the tapes to show that they had conspired to commit the robbery. [00:02:49] Speaker 01: That sounds like argument, not evidence. [00:02:50] Speaker 01: That is partially argument and partially evidence because it changed the whole way that the [00:02:57] Speaker 01: status of the case was, and there wouldn't. [00:03:01] Speaker 03: What's the new evidence in the answer you just gave? [00:03:03] Speaker 01: The way that the case would have been presented to the jury, what the jury would have heard, would have been new evidence there. [00:03:14] Speaker 06: I don't follow that. [00:03:16] Speaker 06: I mean, that's an argument. [00:03:19] Speaker 06: That is an argument about how the trial would have been different, but you don't put on a witness to testify. [00:03:26] Speaker 06: about how the trial would have been. [00:03:29] Speaker 01: That is partially an argument and partially it would have come out at the hearing as to how the case was different. [00:03:36] Speaker 01: There wasn't enough evidence on that in the argument that was put on yet. [00:03:45] Speaker 01: The second one is that. [00:03:47] Speaker 01: What witness would you call? [00:03:49] Speaker 03: I think that. [00:03:52] Speaker 01: I think that the defendants themselves would have been able to testify as to some of that. [00:03:57] Speaker 03: Were they able to file affidavits? [00:04:02] Speaker 01: They were able to file affidavits, but the court remanded for a hearing. [00:04:06] Speaker 03: Trying to figure out what would have happened at the hearing that couldn't have happened in the affidavits. [00:04:11] Speaker 01: Well, as to the Spanish language tapes by themselves, or as to everything. [00:04:22] Speaker 01: there is more that would have happened that they would have put on evidence. [00:04:25] Speaker 01: First of all, I haven't gotten to the other two questions yet. [00:04:28] Speaker 01: But one of the questions was why the defense counsel failed to pursue entrapment. [00:04:36] Speaker 01: And the counsel put in affidavits the defendants didn't have a chance to testify as to what happened there. [00:04:48] Speaker 01: They didn't have a chance to testify [00:04:51] Speaker 01: Defense counsel said that the reason that they did not pursue entrapment was because their clients didn't want them to. [00:05:01] Speaker 01: As a matter of fact... It seems like that goes to deficiency, not prejudice. [00:05:06] Speaker 01: No. [00:05:08] Speaker 01: What goes to deficiency, not prejudice? [00:05:11] Speaker 03: The possibility that your clients could have rebutted the attorney's reasons for not pursuing an entrapment. [00:05:22] Speaker 03: goes to sufficiency of the evidence? [00:05:24] Speaker 03: It would have gone to whether counsel was deficient. [00:05:28] Speaker 03: Correct. [00:05:28] Speaker 03: It would have gone to... But it doesn't seem like it would go to whether any deficiency was prejudicial. [00:05:36] Speaker 01: I think it would have gone to both, because it would have shown how they could have gone forward without it, what the trial would have looked like without it. [00:05:48] Speaker 01: I would like to... [00:05:51] Speaker 03: What could they have said? [00:05:53] Speaker 01: They would have said that they did not tell their counsel not to pursue this, that they wanted to go forward with the strategy, and that they wanted to pursue the entrapment. [00:06:07] Speaker 01: Now, I would like to point out that Mr. Lovo, Mr. Sorto's attorneys, did say it was because of the client's preferences. [00:06:16] Speaker 01: Mr. Ashetu's attorney didn't even address this question in his affidavit. [00:06:21] Speaker 01: There's nothing on the record at all for Mr. Ashetu's attorney. [00:06:25] Speaker 06: I think where you need to try to go here is the government says we can concede the council first part of strict. [00:06:42] Speaker 06: Even assuming that they were deficient, you have the burden of showing [00:06:48] Speaker 06: that there's a reasonable probability of a difference in the outcome, the prejudice. [00:06:53] Speaker 06: Correct. [00:06:55] Speaker 06: So whether the lawyers would have testified about why they did or didn't pursue it or whatever, kind of beside the point here, because we're presuming that they were deficient, that that was a mistake. [00:07:15] Speaker 06: We're just going to presume that. [00:07:17] Speaker 06: that that was, um, um, below the standard performance. [00:07:25] Speaker 06: So talk to me about prejudice. [00:07:28] Speaker 06: Well, your honor is a full probability that the outcome would have been different. [00:07:33] Speaker 01: As I said, the entire trial would have been different without these tapes because what they did is they, the government showed tapes [00:07:41] Speaker 01: of from four different days. [00:07:44] Speaker 01: And what they did is they showed part of the tape, they paused it, they then asked questions. [00:07:49] Speaker 01: The government's witnesses then said, this is what we're all saying here. [00:07:53] Speaker 01: And then they started it again. [00:07:54] Speaker 01: And then they paused it. [00:07:56] Speaker 01: And then that went on and on and on throughout the trial. [00:08:00] Speaker 06: And it I understand that the trial would have looked different, it would have proceeded differently. [00:08:05] Speaker 06: But presumably then they would have just without the tapes would have just testified. [00:08:11] Speaker 06: This is what we said on this day at this time. [00:08:14] Speaker 06: And this is what happened and what was said by everyone. [00:08:18] Speaker 06: And because the defendants [00:08:22] Speaker 06: Their statements are admissible as his admissions by party opponent. [00:08:29] Speaker 06: The government witnesses don't need the tapes to testify about what they say the defendant said. [00:08:36] Speaker 06: So wouldn't all of the substance of the conversations, at least according to the government, wouldn't have that come in anyway? [00:08:50] Speaker 01: It bolstered their credibility by showing these tapes that nobody could understand what was going on that didn't we didn't have transcripts for that were in Spanish that were inaudible the professionals that that tried to take down what they couldn't even. [00:09:04] Speaker 01: figure out what was happening on them because they couldn't write it down into the transcript which is part of the problem. [00:09:09] Speaker 06: Why wasn't the reasonable inference from that that the jury didn't really credit the tapes for anything? [00:09:16] Speaker 06: For one, they probably couldn't understand most of it if it was in Spanish. [00:09:21] Speaker 06: And two, if the tapes were so bad, [00:09:25] Speaker 06: then how could they bolster credibility because the jury would have been like, I don't see how this corroborates them because no one can understand what's on these papers. [00:09:38] Speaker 01: Because they were showing what was going on, and then the government was saying, oh, this is what's happening here. [00:09:43] Speaker 01: And then they would show the next part, and the government would say, oh, this is what's happening here. [00:09:48] Speaker 01: And there wasn't a meaningful way to combat that or to argue against that because there was no [00:09:55] Speaker 01: transcript of the Spanish language tapes, and they were inaudible. [00:09:59] Speaker 01: And the other thing I would like to point out is that had there been an objection to it, when it came up in 2017 and this court found that it was error to have these tapes there, it would have been found under a different standard. [00:10:13] Speaker 01: This court found that there was error, but that it didn't raise to the, that they couldn't find on the record that it raised to the level of plain error [00:10:23] Speaker 01: because there wasn't enough about prejudice on the record at that point. [00:10:29] Speaker 01: And that's why it remanded for a hearing. [00:10:32] Speaker 06: If it had gone up. [00:10:33] Speaker 06: Are you contending that to the extent that the tapes were videotapes and had audio and that the audio part was, couldn't have been admitted? [00:10:46] Speaker 06: Are you saying then that the video could have been excluded also? [00:10:53] Speaker 01: I'm saying that is an argument that the defense attorneys could have made. [00:10:57] Speaker 01: I don't know which they would have. [00:11:00] Speaker 06: But we didn't find that in our first. [00:11:01] Speaker 01: Correct. [00:11:01] Speaker 06: And you didn't make that argument as best as I can recall in the first appeal. [00:11:07] Speaker 06: I'm not you, but the defense did. [00:11:09] Speaker 01: Right. [00:11:10] Speaker 01: They didn't make an argument at all. [00:11:12] Speaker 01: The trial defense counsel didn't make an argument at all to exclude them. [00:11:15] Speaker 06: So my point is that even if the trial had proceeded properly, [00:11:22] Speaker 06: then there would have been video and no audience, right? [00:11:27] Speaker 06: There could have been. [00:11:29] Speaker 01: It's possible. [00:11:30] Speaker 06: They would have proceeded in the same way, but saying this is what we happened here and this is what we were doing. [00:11:37] Speaker 06: This is what we were saying. [00:11:39] Speaker 06: It would not have been bolstered by the audio, [00:11:42] Speaker 06: but it could have been bolstered by the video, right? [00:11:45] Speaker 01: There's parts of it were videos, parts of it was just audio. [00:11:49] Speaker 01: And it's impossible to separate out which part of it was prejudiced by which. [00:11:54] Speaker 01: But in my point there was that if the defense counsel had objected to it, [00:12:01] Speaker 01: at the trial court. [00:12:03] Speaker 01: There's two things that would have happened. [00:12:04] Speaker 01: Either the trial court would have kept them out and they wouldn't have been there, or the trial court would not have kept them out. [00:12:10] Speaker 01: And when it was appealed and came up to the Court of Appeals into this court, it would not have been under the plain error standard. [00:12:18] Speaker 01: It would have been under the harmless error standard. [00:12:20] Speaker 01: So the fact that they did not object to it is itself raised the level of prejudice that they needed to show and the level of error. [00:12:30] Speaker 06: Do you have any authority for that proposition? [00:12:32] Speaker 06: That seems to be for the proposition that that's ineffective assistance. [00:12:39] Speaker 06: I mean, we hear plain error cases every day on appeal. [00:12:43] Speaker 06: Yes. [00:12:44] Speaker 06: And it doesn't get turned into ineffective assistance because they failed to object and we [00:12:50] Speaker 06: are under a plain error standard instead of a harmless error standard. [00:12:54] Speaker 06: It seems like that just throws a monkey wrench into how we review criminal conviction. [00:13:04] Speaker 01: I don't think it does, because this court has found that there's error, right? [00:13:08] Speaker 01: So the question is, what is the standard of review and the level of review that you need to put on there? [00:13:15] Speaker 06: So in every case where there's a failure to object [00:13:19] Speaker 06: in and we review in a criminal conviction under plain error. [00:13:25] Speaker 06: That's also the basis for an ineffective assistance. [00:13:31] Speaker 01: No, but in every case where you send the case back to the district court and say, tell us about the prejudice, then that can be a significant [00:13:43] Speaker 06: issue as to district court want to assess the prejudice from a failure to object on appeal. [00:13:50] Speaker 06: That's not what they're assessing. [00:13:52] Speaker 06: They're supposed to assess the difference in the outcome of the trial. [00:13:55] Speaker 01: Correct. [00:13:56] Speaker 01: It's not a failure to object on appeal. [00:13:58] Speaker 01: It's a failure to object at the district court. [00:14:01] Speaker 01: And the standard would have been different when it came up to this case to this court. [00:14:07] Speaker 01: And when [00:14:09] Speaker 01: it came up to this court, the court would have overturned it at that point because of that error that the court found. [00:14:15] Speaker 06: Given the time, why don't you move on beyond the tapes to think you want to address another issue? [00:14:24] Speaker 01: The other issue was the fact that they didn't hold the hearing. [00:14:27] Speaker 01: So at this point, I will secede the rest of the time to Ms. [00:14:30] Speaker 01: Hernandez because I think we covered that unless you have any other questions about our argument. [00:14:36] Speaker 01: All right. [00:14:36] Speaker 01: Thank you. [00:14:44] Speaker 06: Good morning, Ms. [00:14:45] Speaker 06: Hernandez. [00:14:46] Speaker 02: Good morning, Your Honors. [00:14:50] Speaker 02: So a little bit of background. [00:14:52] Speaker 02: I represented Mr. Loewe for sentencing below because all three defendants fired their lawyers after they went to trial and lost. [00:14:58] Speaker 02: And I appeared before this court for the first appeal. [00:15:04] Speaker 02: Deficiency. [00:15:06] Speaker 02: My client was a young man, and this goes to entrapment. [00:15:10] Speaker 02: My client was a young man working more than 40 hours a week. [00:15:12] Speaker 02: He lived in DC with the mother of his child and the mother-in-law. [00:15:19] Speaker 02: He worked in Baltimore County more than an hour away, generally more than 40 hours a week. [00:15:25] Speaker 02: I obtained his work records for purposes of sentencing. [00:15:30] Speaker 02: The trial lawyer did not have that. [00:15:33] Speaker 06: We don't need to argue deficiency, as I said. [00:15:37] Speaker 06: to your colleague, the government is conceding that for the purposes of this argument. [00:15:42] Speaker 06: So, focus on prejudice. [00:15:44] Speaker 02: Well, the prejudice, you don't need prejudice for entrapment in this sense. [00:15:48] Speaker 02: You can be guilty and still be entrapped. [00:15:52] Speaker 03: That is, you can admit that, in fact, entrapment essentially says I did- You need to show a reasonable probability that the entrapment defense would have succeeded. [00:16:02] Speaker 02: Well, that's my point. [00:16:04] Speaker 02: First of all, his trial lawyer issues an affidavit to Judge Cooper and says it was a strategic decision. [00:16:14] Speaker 02: He can't make a strategic decision when he hasn't obtained his work records from a reputable company. [00:16:23] Speaker 02: That's deficiency. [00:16:24] Speaker 02: And that also undermines his argument that it was a strategic decision. [00:16:29] Speaker 03: Deficiency, too. [00:16:30] Speaker 03: What's the prejudice? [00:16:31] Speaker 02: on an entrapment defense. [00:16:33] Speaker 03: What is the reasonable probability that it would have succeeded? [00:16:37] Speaker 02: It meets all the requirements for entrapment, and it's a jury issue. [00:16:42] Speaker 02: How does what meet all the requirements for entrapment? [00:16:45] Speaker 02: He was induced by his friend for over a year to buy drugs. [00:16:50] Speaker 02: When that didn't pan out, they then brought in this supposed reversing robbery. [00:17:00] Speaker 02: They said, it's an easy thing because we have an inside job. [00:17:05] Speaker 02: Three, the friend called him 131 times, which was an out of the ordinary event. [00:17:12] Speaker 02: Did he call him 131 times about the heist? [00:17:15] Speaker 02: He called him 131 times when the phone records reflected. [00:17:19] Speaker 03: Your answer is we don't know. [00:17:21] Speaker 02: Right, but that goes to a jury. [00:17:23] Speaker 06: You didn't proffer any evidence as best as I can tell, but correct me if I'm wrong. [00:17:29] Speaker 06: of what was the content of any of those hundred [00:17:34] Speaker 02: There's an inference to be drawn when the phone records show. [00:17:38] Speaker 06: Yes or no about whether you proffered any evidence about the contents of the call. [00:17:44] Speaker 02: Only the inference, Your Honor. [00:17:46] Speaker 02: That's the government's cases every day, right? [00:17:50] Speaker 02: The inference to be drawn from the fact that the friend called him 131 times in the two months before the robbery was to take place, when normally he wouldn't make those calls. [00:18:01] Speaker 03: Let's concede that like the very, you tell me, would you concede that the very first moment, the first two words out of the officer's mouth or the friend's mouth, that alone right there would not have been enough for entrapment. [00:18:15] Speaker 03: The first two words out of their mouth, right? [00:18:17] Speaker 03: I don't understand what you mean by the first two words. [00:18:21] Speaker 03: Presumably you think there was entrapment and that entrapment occurred at a certain point in this story. [00:18:30] Speaker 03: The entrapment from being non inducing to induce went from being non entrapment to entrap. [00:18:37] Speaker 03: I think it was entrapment from day one. [00:18:39] Speaker 03: But they used a friend, a close friend. [00:18:42] Speaker 03: What happened on day one that made it? [00:18:45] Speaker 02: On day one, when they purchased the second small quantity of drugs and decided this isn't going to play out as a federal drug case, so we're going to go through this reverse sting, the defendant testifies a trial that he [00:19:01] Speaker 02: The officer told him, the undercover officer tells him that maybe we can give you a job, a construction job, because we're trying to fix this office and blah, blah, blah. [00:19:13] Speaker 02: The officer on the stand says, doesn't say it didn't happen, says, I don't recall. [00:19:17] Speaker 03: Okay, but let's take that. [00:19:18] Speaker 03: Let's say it happened. [00:19:19] Speaker 03: Okay, right right there what you just said that satisfies all the elements. [00:19:23] Speaker 03: At what point in the narrative were all the elements of a successful entrapment. [00:19:28] Speaker 02: Entrapment requires inducement. [00:19:32] Speaker 03: I don't need that. [00:19:33] Speaker 03: I don't need the rule explanation. [00:19:35] Speaker 03: I need the rule application. [00:19:36] Speaker 03: At what point in the facts of this case, did the conversations with the officer and the friend go [00:19:44] Speaker 03: finally satisfy all the elements of entrapment. [00:19:46] Speaker 02: Well, first of all, that's a jury issue. [00:19:48] Speaker 02: Was there entrapment? [00:19:49] Speaker 03: And second of all, I would submit to the court that it is- What point should the jury have found that if you'd gotten to present- When you put everything- At what point in this narrative did it become entrapment? [00:19:59] Speaker 03: When you put everything together. [00:20:00] Speaker 03: So at the very end, the last sentence, the last word that was spoken, it wasn't entrapment until then, but at the last word that was spoken, it became an entrapment. [00:20:09] Speaker 02: I don't understand the court's question or why the court is going there for this reason. [00:20:14] Speaker 02: As every jury issue, I don't know that I can point to one single fact or event that brings it there, but when you take all the facts- I'm not saying it would have to be that fact by itself, but it would be that fact plus all the facts that came before it. [00:20:29] Speaker 03: That fact would be the straw that broke the camel's back. [00:20:31] Speaker 03: That fact would be when the line was crossed from not inducement to inducement. [00:20:37] Speaker 02: I don't know that this or any other case can point to a point where it goes from non-inducement to everything in this case is true. [00:20:46] Speaker 02: Mr. Lobo was entrapment. [00:20:50] Speaker 06: Let me put it this way. [00:20:53] Speaker 06: Let's suppose the instruction had been given, the entrapment instruction had been given. [00:21:00] Speaker 06: and the evidence that was proffered to the trial court had been introduced. [00:21:09] Speaker 02: Which trial court, Your Honor? [00:21:10] Speaker 02: To the actual trial? [00:21:12] Speaker 06: Whatever you presented on remand and whatever had been you had presented prior to remand relevant to entrapment had been introduced. [00:21:28] Speaker 06: What is your [00:21:32] Speaker 06: 60 second closing argument to the jury based on those facts, based on that evidence that they should find entrapment. [00:21:48] Speaker 02: I have a young man working more than 40 hours a week, traveling back and forth, supporting his family, no prior convictions for robbery or anything like that. [00:21:58] Speaker 02: They send his friend for more than a year to try to get him to sell drugs, the minimum, $700. [00:22:05] Speaker 02: So then they then tell him, we're going to hire you to do this reconstruction. [00:22:12] Speaker 02: The messaging always comes from the undercover to my client. [00:22:17] Speaker 02: And half the time, my client is, I'm at work. [00:22:20] Speaker 02: I'll call you back. [00:22:21] Speaker 02: There are 131 calls from the friend just before this thing happens. [00:22:27] Speaker 02: And then he shows up. [00:22:29] Speaker 02: And I would submit to the court, your honor has been a trial judge. [00:22:33] Speaker 02: Juries love to hear that the defendant was employed full-time, not by his cousin, not 10 hours a week, with timesheets. [00:22:43] Speaker 02: His employer for sentencing came in and sent a letter, said, I would hire him, even knowing the conviction. [00:22:51] Speaker 02: I would rehire him because he was such a good worker. [00:22:53] Speaker 02: I submit to the court, I have a chance with that jury. [00:22:56] Speaker 02: I have a chance with at least one juror. [00:22:58] Speaker 02: And the fact that the trial attorney, who I know and who's a very good trial attorney, did not get his work records, it's not just the defendant saying, I worked, right? [00:23:09] Speaker 02: It's concrete evidence. [00:23:11] Speaker 02: The fact that he did not get the phone records that showed these inordinate number of phone calls, it's deficient. [00:23:21] Speaker 02: How can you make a decision whether entrapment is going to play or not if you don't have basic information about a case? [00:23:28] Speaker 06: The 131 phone calls, those were, if I recall right, from June to August. [00:23:35] Speaker 02: From June 15th through August 24th of 2013. [00:23:38] Speaker 02: Those are just the phone calls. [00:23:40] Speaker 02: That doesn't mean there weren't meetings and everything. [00:23:42] Speaker 06: I just understood. [00:23:43] Speaker 06: Did you proffer evidence of how that compared to the frequency of calls prior to June 15th? [00:23:53] Speaker 02: Yes, the phone records reflect that that was an extraordinary number of calls. [00:23:57] Speaker 02: In other words, if you look at the phone records that we received, he wasn't calling. [00:24:02] Speaker 02: 131 calls is almost at least one a day. [00:24:05] Speaker 02: That was not the frequency. [00:24:07] Speaker 02: And most of the calls were coming from the friend to my client. [00:24:11] Speaker 02: And my clients at work. [00:24:14] Speaker 03: So I... Go ahead. [00:24:16] Speaker 03: Anyway, I'm way over. [00:24:18] Speaker 03: I thought of a clear way to ask the question that I think I probably was in artful and asking. [00:24:23] Speaker 03: So this is a quote from Glover. [00:24:25] Speaker 03: The government's behavior amounts to inducement when it was such that a law binding citizens will to obey the law could have been overboard. [00:24:35] Speaker 03: And I'm wondering if you can tell me at what point [00:24:39] Speaker 03: was his will overborn? [00:24:42] Speaker 02: He's a young kid with a lot of, with a very difficult childhood, absent father, the friend knew it. [00:24:48] Speaker 02: The point when his will was over? [00:24:50] Speaker 02: It was. [00:24:51] Speaker 02: At what point was his will over? [00:24:54] Speaker 02: I don't, I'm sorry that I don't, that my view as a trial lawyer and as well as a human being is that there's no single point where something happens. [00:25:05] Speaker 02: It builds. [00:25:07] Speaker 02: It builds. [00:25:08] Speaker 02: Maybe just at what point? [00:25:11] Speaker 02: At the point that he showed up. [00:25:12] Speaker 02: The point that he showed up. [00:25:14] Speaker 02: Well, I mean, I'm just saying the whole thing. [00:25:15] Speaker 02: He was born to be overborn. [00:25:17] Speaker 02: Well, he has no prior convictions, no evidence of no prior convictions or charges for armed robbery or violent crime. [00:25:28] Speaker 03: I mean, I think you would see that someone who had lived the best life imaginable. [00:25:36] Speaker 03: And the government agent says, would you like to do a robbery? [00:25:42] Speaker 02: Is he induced at that point? [00:25:46] Speaker 02: No, but this, the friend starts contacting him in July of the first 14 grams of cocaine are July 24, 2012. [00:25:53] Speaker 02: This is a close friend of his who has nothing to do with any of these defendants who's caught on a drug case of his own and starts because he's working for the cops doing this. [00:26:04] Speaker 02: The other thing is that the government didn't do, which they do in cooperated cases is that they could have taken the friend's phone and monitored it. [00:26:12] Speaker 02: I've had cooperators, the government makes my client sign a document that says we can monitor your call so we know what you're talking to. [00:26:21] Speaker 03: If your argument is that the inducement to break the law began before the government [00:26:38] Speaker 03: even spoke a single word. [00:26:41] Speaker 02: That's a hard argument. [00:26:43] Speaker 02: No, because the government, my argument is the government is speaking throughout. [00:26:48] Speaker 02: The friend reaches out to my client in July or before July, that's the first time he gets him to give him drugs, a small quantity, because he's working for the government. [00:27:00] Speaker 02: So the government is putting him up to [00:27:03] Speaker 02: get me some snacks. [00:27:06] Speaker 02: You want to reduce your sentence, you got to bring me somebody. [00:27:09] Speaker 02: So my argument to the court is that the friend's not reaching out to my client because he's doing it because he wants to get my client in trouble. [00:27:18] Speaker 02: He's doing it because he's being told, if you bring me another head, we can give you a reduction. [00:27:24] Speaker 02: And the friend was out the whole time. [00:27:26] Speaker 02: And the jury never heard any of this. [00:27:30] Speaker 02: The jury never heard any of this. [00:27:33] Speaker 02: And the question about when it's induced, Jacobs, the Supreme Court case, Jacobson with the porn and everything else, it's multiple times that it happens, multiple events that bring somebody overboard. [00:27:50] Speaker 02: And again, maybe I would never have been. [00:27:52] Speaker 02: But my kid is just a young man with limited education, difficult childhood. [00:27:57] Speaker 02: The fact that he was employed full time, he was here legally, [00:28:02] Speaker 02: Maybe he's not a perfect human being. [00:28:04] Speaker 02: And maybe the fact that his friend also, his friend knew all sorts of things about his personal life that would have made him susceptible to some of these entreaties. [00:28:14] Speaker 02: So it just. [00:28:15] Speaker 05: You didn't proffer testimony about any of that. [00:28:20] Speaker 05: About the friend? [00:28:21] Speaker 05: I argued. [00:28:22] Speaker 05: You didn't. [00:28:25] Speaker 06: The counterfactual that we have to assess is what evidence [00:28:31] Speaker 06: would have been presented of entrapment had that evidence been pursued properly by the lawyers and then the instruction was given. [00:28:43] Speaker 02: All the arguments that I'm making were made [00:28:47] Speaker 02: post verdict. [00:28:49] Speaker 06: But what I'm saying is that what you can say at sentencing or to a judge is different than what a jury would be allowed to hear. [00:28:59] Speaker 02: Well, I made all those arguments in the motion for new trial in the district court. [00:29:07] Speaker 02: But yes, the client could have testified to some of that. [00:29:10] Speaker 06: But you didn't proffer that your client was going to testify. [00:29:16] Speaker 06: to any of that. [00:29:19] Speaker 02: I proffered that those were the facts, unrefuted facts about his personal background. [00:29:28] Speaker 02: They're in the pre-sentence report. [00:29:29] Speaker 02: So this is unrefuted facts about his personal background, his father being absent, all his difficulties, the fact that this is a young man who's a friend of his for a long time. [00:29:42] Speaker 02: All those facts were proffered. [00:29:44] Speaker 02: Who I would have put on the stand to testify to that [00:29:48] Speaker 02: you know, that was not an issue. [00:29:50] Speaker 02: And the motions, there are multiple people who could testify to such things. [00:29:53] Speaker 02: His wife could have testified, he could have testified, different people in his life, you know, he dropped out of school and all of this, all those things. [00:30:03] Speaker 06: I think we have, I'm sorry. [00:30:07] Speaker 02: Yeah. [00:30:07] Speaker 02: Thank you so much for going on. [00:30:22] Speaker 04: May it please the court, Timothy Cahill for the United States. [00:30:26] Speaker 04: The district court's ruling should be affirmed because appellants have failed to show prejudice on any of their ineffectiveness claims and have not identified any evidence outside the record bearing on prejudice that would have required an evidentiary hearing. [00:30:38] Speaker 04: First, I wanted to clarify and emphasize that the remand order from this court did not expressly order a hearing. [00:30:44] Speaker 04: And following the typical practice of remandering what this court viewed as a colorable ineffectiveness claim, this court was giving the district court, in the first instance, the opportunity to do a robust review of the trial evidence and any proffers or additional evidence outside the record that appellants were able to present. [00:31:01] Speaker 04: and then evaluate whether a hearing was necessary. [00:31:05] Speaker 04: The district court did that in this case. [00:31:07] Speaker 04: And as we've argued in our briefing and happy to argue here, reached the correct conclusion that no prejudice was shown on the existing record and there was no proffer of any disputed facts that could have affected that prejudice ruling. [00:31:19] Speaker 04: With respect to the Spanish audio issue. [00:31:24] Speaker 06: Let me ask you about that. [00:31:26] Speaker 06: I mean, we said, [00:31:30] Speaker 06: that on this record, we don't know why defense counsel declined to pursue the entrapment defense. [00:31:37] Speaker 06: So that goes to deficiency. [00:31:42] Speaker 06: And then we said, the record does not contain sufficient evidence for us to weigh counsel's performance for any resulting prejudice. [00:31:54] Speaker 06: So if we couldn't weigh it, [00:31:57] Speaker 06: given the record and we send it back, then how could the district court judge, who wasn't the district court judge who tried the case and saw the witnesses and heard the evidence, how was that district court judge in a better position than us to weigh prejudice? [00:32:20] Speaker 06: If we couldn't weigh it, then how could the district court have weighed it without a hearing? [00:32:25] Speaker 04: So I put up two responses to that, Your Honor. [00:32:27] Speaker 04: The first is, in remanding on that basis, this court, I think, implicitly at least recognized the possibility that on remand, additional information could be presented by appellants that would have necessitated a hearing. [00:32:41] Speaker 04: They were given the opportunity to do that on remand and didn't do it. [00:32:44] Speaker 04: The second thing I would want to note is that while it's true that the record of the trial has not changed since direct appeal, with respect to the ineffectiveness claims, that was not the focus of, frankly, either party or the court on direct appeal. [00:32:58] Speaker 04: There were Fourth Amendment and crime of violence issues that comprised a 70-page brief and a 90-page brief, all but about five pages of those briefs. [00:33:06] Speaker 04: The ineffectiveness claims were treated in pretty cursory fashion. [00:33:10] Speaker 06: Are you trying to say that we didn't mean what we said? [00:33:13] Speaker 06: When we wrote that the record does not contain sufficient evidence for us to weigh Council's performance or any resulting prejudice, [00:33:21] Speaker 04: But certainly with respect to the prejudice, Your Honor, I think the record presented to this court on direct appeal was maybe not as robustly developed and analyzed and addressed in that the district court, as this court's typical practice, the district court is in the best position in the first instance to do that sort of robust review of a fact-intensive issue with the parties exploring the trial record in depth and, again, giving appellants the opportunity to present any evidence they thought was relevant to that issue that may have been outside the record. [00:33:51] Speaker 06: And having the court didn't say that the record. [00:33:54] Speaker 06: As we have it for the record. [00:33:59] Speaker 06: That was presented to us. [00:34:04] Speaker 06: It says the record does not contain sufficient evidence. [00:34:08] Speaker 06: For us to determine prejudice. [00:34:12] Speaker 06: In. [00:34:14] Speaker 06: And again, we say later in that same paragraph, nor is the extent of resultant prejudice, if any, clear from the record. [00:34:27] Speaker 06: And we therefore remand for consideration of this challenge as well. [00:34:32] Speaker 06: That's with respect to the tapes. [00:34:44] Speaker 06: And we've said that with entrapment, that's a jury issue, the fact bound issue. [00:34:52] Speaker 06: So I just find it hard to understand why if we said the record isn't enough, [00:35:06] Speaker 06: sufficient for us to determine prejudice how the district court judge, looking at the same record, can make the assessment. [00:35:15] Speaker 04: And I would emphasize again, Your Honor, that on remand, this court having done the remand, appellants have the opportunity then to identify any disputed facts that they thought would be necessary for the district court to resolve that would necessitate a hearing. [00:35:30] Speaker 04: And throughout that process, and frankly, even now on appeal, for two briefs and an oral argument, I would submit that they have failed to identify a single disputed fact that would be determinative on the issue of prejudice. [00:35:42] Speaker 04: And given that posture, the district court. [00:35:45] Speaker 06: I'm not sure what you mean by they haven't identified a single disputed fact. [00:35:50] Speaker 06: They've identified that there were 131 phone calls. [00:35:53] Speaker 06: They've identified that they would have introduced work records. [00:35:58] Speaker 06: They would have. [00:36:01] Speaker 06: I'm going to ask you the same question that I asked defense counsel. [00:36:08] Speaker 06: So let's suppose all of that evidence came in and the entrapment defense was presented and instruction given to the jury. [00:36:21] Speaker 06: I don't know whether you ever were trial aware, but what would the government say in its closing as to why [00:36:30] Speaker 06: The jury should not find entrapment. [00:36:33] Speaker 04: So I think there's focus on the phone calls, even if we imagine some scenario where those phone calls, the phone logs, which is all that was proffered. [00:36:42] Speaker 04: And that's why I say there's no disputed fact. [00:36:44] Speaker 04: There was no proffer about the content of those phone calls. [00:36:46] Speaker 04: That may have been a disputed fact that would have required resolution. [00:36:49] Speaker 04: But the mere existence of the phone calls, I think, [00:36:53] Speaker 04: would not be compelling evidence of entrapment, certainly not enough to raise a reasonable probability of acquittal, given that the contents of them would have remained pure speculation. [00:37:01] Speaker 04: And the only evidence we have about them, as just Cooper points out correctly in his district court decision, undermines any suggestion that they were part of some pressure campaign, both the length of those calls and the timing of those calls. [00:37:13] Speaker 04: Almost all of those calls preceded the August 13th meeting when the idea of a robbery was ever even first proposed to Mr. Lovo. [00:37:22] Speaker 04: So those phone calls preceded the fact that a robbery could have even been proposed. [00:37:26] Speaker 04: Secondly, the longest of all of those phone calls, the absolute longest one was two minutes and seven seconds long. [00:37:33] Speaker 04: Most of the phone calls were a matter of seconds long. [00:37:36] Speaker 04: I'm not going to speculate what they were, but that's all that you could be. [00:37:39] Speaker 04: I mean, that might be I'm running late. [00:37:41] Speaker 04: I mean, there's not a lot you can say in a few seconds that could over will someone's overbear someone's will to obey the law robbery, right? [00:37:48] Speaker 06: We're on for the robbery, right? [00:37:49] Speaker 06: You could say that in a few seconds. [00:37:51] Speaker 04: You could, Your Honor, if anyone had ever proposed a robbery. [00:37:54] Speaker 04: But the only evidence from either party, including Mr. Lobo's own testimony, is that the robbery wasn't proposed until August 13th. [00:38:00] Speaker 04: There's no evidence proffered or suggested to the contrary. [00:38:03] Speaker 06: So how many calls were between August 13th and 24th? [00:38:07] Speaker 04: I believe. [00:38:08] Speaker 04: I know that prior to August 13th was about 100 of those calls. [00:38:18] Speaker 04: And then after August 13th, [00:38:27] Speaker 04: Looks like less than 20 after August 13. [00:38:31] Speaker 04: I would also emphasize that according to the only evidence we have about Mr. Avila, that's Mr. Lovo's friend's role in all of this, his role ended when he accompanied Mr. Lovo to that first meeting where the robbery was proposed. [00:38:45] Speaker 04: At Mr. Lovo's own request, he was left out of any further proceedings. [00:38:49] Speaker 04: So from the moment the robbery was even on the table, Mr. Avila no longer played any role in these proceedings. [00:38:55] Speaker 04: And the record evidence is overwhelming [00:38:58] Speaker 04: that from that moment on, Mr. Lobo's predisposition was that, far from being reluctant to engage in this criminal behavior, when he was multiple times given the opportunity to back out with no adverse consequences, he was the one who was insistent on following through. [00:39:13] Speaker 06: Well, that is the government's evidence. [00:39:14] Speaker 06: That's not what Mr. Lobo could find. [00:39:20] Speaker 04: Yes, but Mr. Lovo, if the only additional testimony in this counterfactual scenario, Your Honor, is phone calls whose content is speculative, almost all of which preceded these relevant events, we would submit that that doesn't come close to establishing a reasonable probability of acquittal on an entrapment theory. [00:39:37] Speaker 04: So the jury was presented with Mr. Lovo and the government's conflicting accounts of what actually happened at those meetings. [00:39:45] Speaker 04: And they made their assessment of which testimony they credited. [00:39:49] Speaker 04: And so in order to show a reasonable probability of acquittal, the appellants would need to establish that what they've proffered here would have changed that assessment, a reasonable probability that the jury would have reached the opposite conclusion. [00:40:01] Speaker 04: I'm going to submit that given the nature of the evidence presented here, which is, again, almost entirely speculative, and what little we know about it runs counter to the idea that it was part of a pressure campaign, doesn't meet that threshold. [00:40:13] Speaker 06: Now, Mr. Ashutu, [00:40:16] Speaker 06: not pronouncing his name correctly, was convicted of the Hobbs Act robbery, but was not convicted of the 924 count. [00:40:30] Speaker 06: Am I correct? [00:40:31] Speaker 06: That's correct. [00:40:33] Speaker 06: And the evidence with respect to him was that [00:40:46] Speaker 06: I guess he was obviously there on the day of the alleged robbery. [00:40:54] Speaker 06: But I guess here's what I'm getting at, is that Strickland says we're supposed to look at prejudice [00:41:05] Speaker 06: by kind of looking at the totality of the evidence and it depends case to case and the deficient performance and the evidence that wasn't presented that should have been presented or that was admitted and should have been kept out. [00:41:24] Speaker 06: It's going to just depend in every case kind of like how prejudicial it was or how much impact [00:41:30] Speaker 06: may have had, so there's no kind of black and white way of assessing these things. [00:41:37] Speaker 06: And that we're also supposed to look at the strengths and weaknesses of the government's case when we assign prejudice. [00:41:46] Speaker 06: So the fact that Shetu is acquitted of account when he's right there with everybody else, [00:41:55] Speaker 06: And he arrived in the same car with everybody else that had all the weapons in it that the government found. [00:42:05] Speaker 06: Doesn't that say something about the weakness of the government's case? [00:42:09] Speaker 04: So in terms of the actual claims raised here on appeal, Your Honor, I would submit no, because especially with Mr. Ashetu, in terms of whether or not there's prejudice on whether or not he could have raised an entrapment defense. [00:42:21] Speaker 06: No, I mean, I'm just saying if what we're supposed to do under Strickland is just kind of way like, OK, this mistake could have been a lot more prejudicial here because this was a weak government case. [00:42:35] Speaker 06: whereas if the cases like overwhelming with videotapes, DNA, fingerprints, your mom testifying against the defendant or whatever, you know, prejudice there would be a much more uphill battle. [00:42:54] Speaker 06: I guess all I'm saying to you is doesn't that acquittal tell us or shouldn't we, the conclusion that we reach from that is that this wasn't really [00:43:04] Speaker 06: that overwhelming of a case. [00:43:07] Speaker 04: And I will respond in the same way, Your Honor, as frame the question, which is distinguishing amongst these appellants, as in some of these claims, having somewhat different circumstances and different evidence and different, frankly, legal claims. [00:43:19] Speaker 04: So with respect to the two claims that we've spent the most time talking about here, I would argue why Mr. Ashetu still has not shown prejudice. [00:43:27] Speaker 04: And first, on the entrapment defense, I would say Mr. Ashetu doesn't even get through the door on entrapment defense. [00:43:31] Speaker 04: because he could only raise a derivative entrapment defense. [00:43:34] Speaker 04: And there's been no suggestion, no proffer, no anything to indicate any specific targeting of his involvement in this case. [00:43:41] Speaker 04: The only evidence we have from any party is that he was present only at the invitation of Mr. Lobo, which this court has expressly held is not established derivative entrapment. [00:43:51] Speaker 04: So regardless of any other evidence affecting him, on the entrapment defense for Mr. Ashetu, we submit would have been a non-starter under any scenario that's been presented. [00:44:01] Speaker 04: With respect to the other primary claim, the Spanish language audio, Mr. Ashetu was, he was, Your Honor, correctly, as Your Honor correctly points out, only present at that last meeting. [00:44:12] Speaker 04: That was a 40-minute meeting that was entirely captured on video. [00:44:15] Speaker 04: Mr. Ashetu appears in that video. [00:44:18] Speaker 04: And when Mr. Ashetu speaks in that video, he speaks in English, giving directions to the other participants as to what they're going to do when the robbery commences. [00:44:29] Speaker 04: Supplemental appendix page 145, 154, 161 has testimony and evidence about Mr. Ashetu giving those directions to the other robbers in English. [00:44:39] Speaker 04: There's no suggestion that that would have been excluded. [00:44:41] Speaker 04: I recognize that there was an acquittal in the 924C charge. [00:44:45] Speaker 04: Obviously the government thought there was sufficient evidence. [00:44:47] Speaker 04: They wouldn't have proceeded on that charge if they didn't. [00:44:49] Speaker 04: But who knows how the jury drew that distinction. [00:44:53] Speaker 04: But if I were to wager a guess, it probably is the fact that he was only present at the last meeting and not the planning meetings. [00:44:59] Speaker 04: And the jury drew some distinction on that front. [00:45:01] Speaker 04: But they still convicted him of conspiracy to commit Hobbs Act robbery. [00:45:05] Speaker 04: And the evidence that they convicted him on would have been largely identical, especially in his case. [00:45:10] Speaker 04: He wasn't present at the earlier meetings where the conversations were largely in Spanish. [00:45:16] Speaker 04: His involvement at that last meeting was him speaking at times in English about directions to the other participants in this robbery. [00:45:24] Speaker 06: But he wasn't the guy, because he wasn't at the prior meetings, he wasn't the guy at the prior meetings who talked about how he preferred machetes, right? [00:45:32] Speaker 04: That was Mr. Sorta. [00:45:34] Speaker 06: So if the jury thought that he was there to, you know, [00:45:43] Speaker 06: Commit a robbery or had reached an agreement and committed an overt sufficient overt acts to convict them of conspiracy to commit the Hobbs Act robbery But yet they weren't convinced that Sufficiently to the proof beyond the reasonable doubt to convict them of possession of any of the firearms [00:46:12] Speaker 06: Doesn't that tell us something about the potential weakness of the government's case overall? [00:46:24] Speaker 04: So I don't agree, Your Honor, but I think, at the very least, I will acknowledge that it means that the jury drew some distinction here. [00:46:31] Speaker 04: That's clearly the case. [00:46:32] Speaker 04: But in this posture, this court doesn't need to speculate as to why that distinction was drawn. [00:46:38] Speaker 04: The questions presented here [00:46:40] Speaker 04: or with respect to any of these appellants, including Mr. Ashatu, whether or not he has shown a reasonable probability that he would have been acquitted based upon the claims actually raised by appellants in their motion for a new trial. [00:46:53] Speaker 04: And so with respect to whether or not he could have raised an entrapment defense, would that have raised a reasonable probability of acquittal? [00:46:59] Speaker 04: We submit clearly no. [00:47:00] Speaker 04: There's nothing to even get him through the door of derivative entrapment. [00:47:03] Speaker 04: With respect to the Spanish language audio, again, we submit no. [00:47:07] Speaker 04: I mean, he's captured on video at that last meeting participating in all of this, and then he gives statements and directions in English. [00:47:14] Speaker 06: So let me make sure I understand your argument about derivative entrapment. [00:47:20] Speaker 06: So let's suppose at the trial, the entrapment instruction had been given. [00:47:30] Speaker 06: With respect to Mr. Lovo, the jury acquitted him. [00:47:42] Speaker 06: And we know from, say, a special verdict form was used. [00:47:46] Speaker 06: We know with certainty that they acquitted him based on the entrapment structure. [00:47:56] Speaker 06: But they convicted the other. [00:48:00] Speaker 06: You would say that that would be a completely permissible outcome. [00:48:14] Speaker 06: And just because he was entitled to the instruction doesn't mean that the other two would have been entitled to the instruction. [00:48:23] Speaker 04: Yes, is the short answer. [00:48:25] Speaker 04: But to elaborate. [00:48:27] Speaker 04: First of all, of course, the government's position is that none of them would have been entitled to these instructions. [00:48:31] Speaker 04: But given your honor's hypothetical that the court believed that that threshold had been met and was giving instructions, the only type of instruction that possibly could have been given for Mr. Ashetu or Mr. Sorto on this record would have been a derivative entrapment instruction. [00:48:47] Speaker 04: And I would direct the court's attention to the Washington case that this court had in 1997. [00:48:51] Speaker 04: which expressly that the scenario in that case was there was a investigating a potentially corrupt police officer and. [00:49:00] Speaker 04: There was discussions about him recruiting others to be involved in his illegal scheme. [00:49:05] Speaker 04: But it was all in generalized discussion about recruiting others. [00:49:08] Speaker 04: He recruited others. [00:49:10] Speaker 04: And this court held that they were not entitled to derivative entrapment as a defense, as a matter of law, if there was no evidence that the government had specifically targeted them for involvement. [00:49:20] Speaker 04: Because their involvement was because their friend invited them. [00:49:22] Speaker 04: There was no government action overbearing their will to engage in illegal activity. [00:49:27] Speaker 04: And there's nothing that's been proffered or presented, and certainly not in the trial record, indicating anything other than that Mr. Sortos and Mr. Chetu's involvement in this case was solely at the invitation in the behest of Mr. Lovo, which is not established as a matter of law-derivided entrapment defense. [00:49:46] Speaker 04: Do you see I'm over time? [00:49:48] Speaker 04: If Your Honors don't have further questions, we otherwise rely on our briefing and ask that the judgment of the district court be upheld. [00:49:55] Speaker 06: Thank you, Your Honor. [00:49:59] Speaker 06: I believe that the Pellants Council were both over time, but give each of you two minutes. [00:50:08] Speaker 01: The government has stated the defense counsel could have indeed disputed facts, but that's exactly what we needed the hearing for. [00:50:16] Speaker 01: The government counsel also stated there was no mention of a robbery until August, but we actually don't know the type of pressure that was [00:50:25] Speaker 01: given on them and that specific robbery was not mentioned until August, but that doesn't mean that there wasn't pressure to do a robbery starting in May when they first started conversing about this. [00:50:38] Speaker 01: And there is some indication that there was some conversations about that. [00:50:43] Speaker 06: And the record was proffered that there was inducement that happened before August, whatever that case was, August 13th. [00:50:51] Speaker 01: Yes, yes. [00:50:52] Speaker 01: And a lot of that has to do with the pressure from the 131 phone calls that occurred before that at the government's behest by the code defendant, but at the government's behest. [00:51:03] Speaker 01: It wouldn't have happened had it not been for the government. [00:51:08] Speaker 01: As for the issue of the entrapment for Mr. Ashetu, [00:51:13] Speaker 01: In particular, there's nothing in the affidavit, so you can't make a determination as to why his counsel did not pursue that, because there was nothing in his counsel's affidavit on that at all. [00:51:27] Speaker 01: During the entire time that there were these conversations, the agent was constantly discussing a crew, which is the derivative [00:51:39] Speaker 01: entrapment here. [00:51:40] Speaker 01: They were constantly discussing, we need a crew, we need a crew. [00:51:43] Speaker 01: We can get people, you can get people. [00:51:45] Speaker 01: And that is how the derivative entrapment came about. [00:51:50] Speaker 01: The evidence, the way that evidence was presented was as to the Spanish language tapes was that the government could understand what was going on. [00:52:00] Speaker 01: And they were the only ones that could understand what was going on. [00:52:02] Speaker 01: So everybody had to, that they could hear it. [00:52:05] Speaker 01: Nobody else could. [00:52:06] Speaker 01: And so we just had to believe [00:52:08] Speaker 01: what they had to say without any looking carefully at that. [00:52:15] Speaker 01: Deficiency and prejudice are closely connected because only once one knows the degree of the deficiency is it possible to determine the prejudice. [00:52:24] Speaker 01: And that's why you needed to have the hearing in order to be able to determine what the deficiency was in order [00:52:33] Speaker 01: to be able to determine the prejudice. [00:52:36] Speaker 01: And finally, I would like to say, as Judge Wilkins suggested, the prejudice, the court found that in 2017, they couldn't find prejudice and they sent it, couldn't determine if there was prejudice. [00:52:49] Speaker 01: And they sent it back to the trial court to determine whether there was prejudice or not. [00:52:55] Speaker 01: And we cannot find here now without having held a hearing because the, [00:53:03] Speaker 01: The affidavits didn't answer the questions that were sent back to them. [00:53:06] Speaker 01: The affidavit didn't discuss what conversations they had, whether the appellates advised. [00:53:12] Speaker 01: The affidavits could not possibly have discussed whether the appellants advised their counsel that the testimony was not an accurate account of the conversations. [00:53:24] Speaker 01: The appellants had to be the ones that would be testifying as to that. [00:53:29] Speaker 01: And there was nothing showing the extent of prejudice [00:53:32] Speaker 01: from not objecting to the Spanish language tapes. [00:53:37] Speaker 01: So we at this point would ask that you would reverse and remand. [00:53:41] Speaker 01: Thank you. [00:53:49] Speaker 02: Thank you, Your Honor. [00:53:49] Speaker 02: I'll try to be brief. [00:53:55] Speaker 02: So the phone calls were not explored on the record when my client testified at trial because the lawyer didn't know about the phone calls, didn't have the phone records. [00:54:05] Speaker 02: He didn't ask him about his full-time work because he didn't have those records. [00:54:11] Speaker 02: In terms of the inducement, July 24, 2012, there's a small transfer of drugs. [00:54:17] Speaker 02: my client and the snitch. [00:54:19] Speaker 02: February 7, 2013, another small transfer of drugs. [00:54:24] Speaker 02: That's when the snitch, February 7, 2013, is the first time the snitch introduces the undercover officer. [00:54:31] Speaker 02: You mean the cooperator? [00:54:32] Speaker 02: Yes, sir. [00:54:34] Speaker 02: The cooperator, the young man that had nothing to do with this offense and was working to try to get time off. [00:54:40] Speaker 02: So February 7, 2013, the young man brings into the conversation the undercover officer, February. [00:54:49] Speaker 02: After several months of nothing happening, the undercover reached out to my client. [00:54:57] Speaker 02: And Lobo's testimony is that he told him that he had recently purchased a storefront of some kind and he wanted his advice on how to remodel. [00:55:13] Speaker 02: And in fact, it is undisputed that the undercover at that meeting took my client to a shop at the 600 block of Florida Avenue and told him, this is my shop that I'm trying to remodel. [00:55:30] Speaker 02: The first meeting that the officer says they talked about the robbery was August 13, 2023 at a restaurant. [00:55:38] Speaker 02: That meeting was not recorded. [00:55:41] Speaker 02: That meeting was not recorded because the agents decided not to record it. [00:55:46] Speaker 02: And as with these reversing operations, [00:55:51] Speaker 02: They did it in hundreds of cases throughout the country. [00:55:55] Speaker 02: This goes to the selective enforcement. [00:55:57] Speaker 02: All the defendants, 99% of the defendants were Blacks or Latinos. [00:56:03] Speaker 02: They brought them to this restaurant, they gave them alcohol, and conversations took place. [00:56:11] Speaker 02: And with respect to the entrapment defense, one of these cases, and they're identical, [00:56:16] Speaker 02: including these officers, was tried in the Eastern District of Virginia and an acquittal resulted on an entrapment defense. [00:56:24] Speaker 02: I can submit that case to the court. [00:56:27] Speaker 06: None of that's in the brief. [00:56:30] Speaker 02: I don't think the acquittal is in the brief. [00:56:32] Speaker 02: But the fact that they applied them with drugs and with alcohol at these meetings and this other stuff, this was before the district court and this was in the motions that were presented post trial for a new trial. [00:56:46] Speaker 06: All right, we have your argument. [00:56:49] Speaker 02: Thank you, Your Honor. [00:56:51] Speaker 06: The pace is submitted.