[00:00:00] Speaker 04:
of appeals for the ninth circuit is now in session please be seated welcome to the ninth circuit we're glad to see everybody here this morning we have four arguments set to be argued today we'd just like to remind council that try and stick to your time frames especially where we've got a little bit of a busier morning we'll

[00:00:25] Speaker 04:
Trends sum up as your time is running down.

[00:00:31] Speaker 04:
And if you want, let us know if you want rebuttal time, but watch that as well.

[00:00:38] Speaker 04:
We'll go ahead and mention that, I guess we just got one submitted case today, United States versus Renteria, case number 23-1869.

[00:00:48] Speaker 04:
And we'll go ahead and start with the first case set for argument, which is Cervantes Torres versus United States, case number 23-55617.

[00:01:05] Speaker 01:
Good morning, your honors.

[00:01:06] Speaker 01:
May it please the court.

[00:01:07] Speaker 01:
My name is Katherine Kimball Windsor, and I represent the appellant Hector Cervantes Torres.

[00:01:12] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:01:14] Speaker 01:
We are here on the appeal of a quorum nobis petition, which raised a Raheif claim challenging Mr. Cervantes' conviction for 922 G5A, which prohibits firearm possession by a person unlawfully in the United States.

[00:01:29] Speaker 01:
In 2019, the Supreme Court held in Raheif that the government must prove knowledge of the relevant status in a 922

[00:01:36] Speaker 01:
GE prosecution and after a hafe it's clear that the jury here in this case at the trial level was Misinstructed although it wasn't misinstruction at the time of course but because this instruction went to the heart of mr. Cervantes is defense it is fundamental error under the quorum nobis Requirements and what so which requirements are you relying on?

[00:02:01] Speaker 04:
You're relying on our prior case law with the four standards?

[00:02:05] Speaker 01:
Correct.

[00:02:06] Speaker 01:
And there's really only one that's in dispute here.

[00:02:08] Speaker 01:
It's the fourth one about whether this was fundamental error of the most fundamental character.

[00:02:14] Speaker 05:
And so there was no objection to the instruction trial or request for a different instruction, was there?

[00:02:22] Speaker 01:
There was not.

[00:02:23] Speaker 01:
It was really clear that Mr. Cervantes, and the government acknowledges this, that Mr. Cervantes is the defense he wanted to go with.

[00:02:30] Speaker 01:
And the reason that he went to trial was that he believed that he had legally entered the country.

[00:02:35] Speaker 01:
It wasn't a defense at the time, and his lawyers told him that it wasn't a defense at the time.

[00:02:39] Speaker 01:
And he went to trial against their advice.

[00:02:43] Speaker 01:
He testified, and he really admitted all of the elements of the crime as it was then defined.

[00:02:49] Speaker 01:
And he would occasionally try to ask if he could give additional explanation, but it was a very truncated,

[00:02:58] Speaker 05:
direct exam by the lawyer who was trying to make sure they didn't tread into- Right, but he's not asserting an ineffective assistance of counsel claim here, right?

[00:03:08] Speaker 05:
I mean, so- Not on- Just a challenge to the instructions.

[00:03:12] Speaker 05:
And so the government has this argument about cause and prejudice, but even if we don't agree with that, isn't it at least plain error review that we have to apply?

[00:03:23] Speaker 01:
Yes, and I think, I mean, I argued that we've established actual innocence.

[00:03:29] Speaker 01:
But I think we definitely certainly can meet either of those other two standards, which are- Let me ask you about actual innocence, though.

[00:03:36] Speaker 01:
Yes.

[00:03:36] Speaker 04:
Because, I mean, I understand that there are some sympathetic facts here.

[00:03:40] Speaker 04:
But at the end of the day, he got a letter from USCIS that says, you're not here legally.

[00:03:46] Speaker 04:
How do we look at that?

[00:03:50] Speaker 04:
under the plein air standard or any other standard and say, oh, well, there's absolutely no way he could have thought that.

[00:03:59] Speaker 04:
I mean, his response is, well, I just thought it was an error.

[00:04:02] Speaker 04:
Did he say that at the time or that only came up later?

[00:04:06] Speaker 01:
He actually, when he's testifying, when he was asked about it, he asked if he could explain the answer.

[00:04:13] Speaker 01:
And he was he was he was not allowed.

[00:04:16] Speaker 04:
He was not allowed to explain that he didn't give that he didn't at the trial.

[00:04:20] Speaker 04:
He didn't say, oh, I got this letter, but I just thought it was wrong because of this and this and this reason.

[00:04:25] Speaker 01:
I think that the letter said that he could provide additional information.

[00:04:29] Speaker 01:
And what you see throughout the whole case was that Mr. Cervantes

[00:04:33] Speaker 01:
really believed in the power of his green card.

[00:04:35] Speaker 04:
If he had his green card, he felt like... But he was told that the green card... Am I wrong?

[00:04:39] Speaker 04:
I thought he was told that the green card wasn't effective anymore after 2013.

[00:04:44] Speaker 01:
Well, he was told that his application for the replacement card had been denied.

[00:04:49] Speaker 01:
And I... Your Honor, if you want to... I can understand you not finding for me on actual innocence, but let's... But even if it's not actual innocence...

[00:05:01] Speaker 04:
I guess back to Judge Miller's point, whatever standard we apply here, how do you win under that?

[00:05:08] Speaker 01:
The other standards are plain error is reasonable probability, which

[00:05:14] Speaker 01:
Judge Baker in the Mitchell case came up with it, that he thinks that's about 25 percent.

[00:05:19] Speaker 01:
But in any event, it's less than more likely than not.

[00:05:22] Speaker 01:
It's more than reasonable possibility, which is 10 percent.

[00:05:26] Speaker 01:
I mean, I'm not saying that it's nothing, but it's not the most stringent standard that I could imagine.

[00:05:35] Speaker 01:
I'm not here arguing for judgment of acquittal.

[00:05:38] Speaker 01:
I'm not saying that

[00:05:41] Speaker 01:
you know, that the case should be dismissed outright.

[00:05:44] Speaker 01:
We're making an instructional error claim.

[00:05:46] Speaker 01:
And what we're saying is that this was really the heart of his defense.

[00:05:51] Speaker 01:
And because the jury was misinstructed, and he wasn't allowed to present that defense.

[00:05:55] Speaker 04:
Well, but isn't that part of the problem?

[00:05:58] Speaker 04:
He didn't present that defense.

[00:06:00] Speaker 01:
Well, he couldn't at the time, because.

[00:06:02] Speaker 04:
But why does that matter?

[00:06:03] Speaker 04:
I mean, at least in the habeas context, we see it all the time, where criminal defendants are raising arguments that are precluded.

[00:06:10] Speaker 04:
under circuit precedent as a way, but they feel that they're preserving their argument or they feel that circuit precedent was wrong.

[00:06:18] Speaker 04:
I'm worried about setting a standard for defendants where they just say, oh, well, there was circuit precedent, I didn't have to raise it, and then we're stuck having this very issue here.

[00:06:29] Speaker 04:
I mean, you've probably read my, this might not surprise you, because you've read my concurrence in Pollard, where I've expressed this view, and it may not be, you know, the consensus view, but I'm wondering how we get around this problem.

[00:06:45] Speaker 01:
Well, I think it's, I think I am aware of your concurrence in that case, and I think what happened, though, was that then in a subsequent case, in the Whirly case, this court found that

[00:06:56] Speaker 01:
the cause element was met.

[00:06:59] Speaker 01:
And I don't think the government disputes that either.

[00:07:02] Speaker 01:
I understand.

[00:07:03] Speaker 04:
And I'm only saying it because you said, well, he couldn't even present it.

[00:07:08] Speaker 04:
And I guess I'm just pushing back on that.

[00:07:10] Speaker 01:
Yeah.

[00:07:10] Speaker 04:
Because I think he could have.

[00:07:12] Speaker 04:
I mean, defendants do it all the time.

[00:07:15] Speaker 01:
I mean, certainly the Raheef defendant raised it, which was the argument that the Third Circuit adopted.

[00:07:21] Speaker 01:
This court did not adopt that position.

[00:07:25] Speaker 01:
I certainly see your point, but I think that particular issue is closed at this point.

[00:07:31] Speaker 01:
based on the Worley decision.

[00:07:33] Speaker 01:
And I think- No, I don't disagree with you.

[00:07:35] Speaker 04:
I'm just wondering where that enters into it.

[00:07:38] Speaker 01:
I mean, it is tough as a defense lawyer to have to- To raise these five other arguments that were precluded that might raise some other day.

[00:07:47] Speaker 04:
They might get some viability.

[00:07:48] Speaker 01:
Exactly.

[00:07:49] Speaker 01:
And I think we are more conscious of that right now, as the law is changing so much.

[00:07:53] Speaker 01:
That was sort of another side note that I wanted to mention, was that while this case was pending,

[00:08:00] Speaker 01:
The Bruin case came down and that certainly has the whole other second.

[00:08:05] Speaker 01:
There's a whole other other issue here.

[00:08:07] Speaker 04:
And so I, I, why hasn't that issue been teed up?

[00:08:11] Speaker 01:
Well, it had been, we had already argued it and you know, I don't know if this was the right thing to do.

[00:08:16] Speaker 01:
I'm not sure if you can file subsequent quorum nobis petitions, but I would ask that if you don't, if you disagree with, with me on the race issue that

[00:08:24] Speaker 01:
if you remand to the court to allow me to amend the petition to add that claim.

[00:08:29] Speaker 04:
We get a fun Second Amendment case coming up, too.

[00:08:31] Speaker 01:
Yeah.

[00:08:32] Speaker 01:
I mean, I think that is really certainly where the hot litigation is happening on these charges.

[00:08:37] Speaker 01:
I feel like I'm here arguing the wrong issue in a way, although I do think that we win on this issue.

[00:08:42] Speaker 01:
And I do think that this is not, whether it's plain air, whether it's actual prejudice, which I think are about the same thing, reasonable probability or substantial likelihood, I think we should win under either standard.

[00:08:54] Speaker 05:
Before you sit down, can I just ask you one question about the green card?

[00:08:57] Speaker 05:
So I understand that part of his theory is, well, they gave me this sticker extending the green card.

[00:09:03] Speaker 05:
Am I correct that the sticker extended the validity of the green card till April of 2013?

[00:09:08] Speaker 05:
Yes.

[00:09:09] Speaker 05:
And the arrest here was in October of 2013?

[00:09:11] Speaker 05:
That's correct.

[00:09:13] Speaker 00:
Yes.

[00:09:13] Speaker 00:
Thank you.

[00:09:15] Speaker 00:
OK.

[00:09:15] Speaker 00:
Thank you.

[00:09:21] Speaker 03:
Good morning.

[00:09:22] Speaker 03:
Rob Keenan for the United States, and may it please the court.

[00:09:26] Speaker 03:
Corm nobis is an extraordinary remedy designed only for extreme cases where justice demands that some relief be provided.

[00:09:34] Speaker 03:
That's not this case.

[00:09:35] Speaker 03:
The facts of this case do not establish any error of a most fundamental character.

[00:09:42] Speaker 03:
And more to the point, the defendant in this case.

[00:09:45] Speaker 03:
Can I ask you about that, just so I have it clear in my head?

[00:09:48] Speaker 04:
I mean, as I understand it,

[00:09:49] Speaker 04:
This is an error of the fundamental character in the sense that a Raheef problem fits that definition, but we've still got to deal with the overlay of whether it meets the plain error standard or whatever standard we choose to apply.

[00:10:04] Speaker 03:
It is no question that there is an instructional error

[00:10:09] Speaker 03:
occurred in light of what we now know under Rahaf.

[00:10:13] Speaker 03:
At the time, your instructions were entirely correct.

[00:10:16] Speaker 03:
No legal error there.

[00:10:17] Speaker 03:
But since then, the intervening decision in Rahaf makes clear the mens rea requirement includes the prohibited status, knowledge of it.

[00:10:26] Speaker 03:
So as to that, we think there's no proof of a fundamental character.

[00:10:33] Speaker 03:
And more to the point, under the Frady standard,

[00:10:36] Speaker 03:
We believe that the defendant has failed to establish a substantial likelihood that if this case were tried before a jury, properly instructed under Rahaf, that the result would have been different, that he would have been acquitted.

[00:10:50] Speaker 04:
What is your view on that standard that we should be applying for that?

[00:10:56] Speaker 03:
habeas case, 2255, where the court applied a cause prejudice standard.

[00:11:01] Speaker 03:
I think there's precedent for it in that sense.

[00:11:04] Speaker 04:
Having the other circuits gone that way?

[00:11:07] Speaker 03:
The DeCastro case, Third Circuit, I believe, cited in our brief, is consistent with that.

[00:11:15] Speaker 04:
So- Are there any other circuits that have gone the other way and have rejected a cause and prejudice standard in the Corum Nobis context?

[00:11:23] Speaker 04:
Not to my knowledge.

[00:11:25] Speaker 05:
And you're not questioning the cause part of cause and prejudice, are you?

[00:11:29] Speaker 03:
No.

[00:11:30] Speaker 03:
I'm sorry.

[00:11:31] Speaker 05:
So if it's just prejudice, is there really any difference between the prejudice part of cause and prejudice and what he'd need to show on prong three of plain error?

[00:11:45] Speaker 03:
According to Frady, the Supreme Court makes clear, plain error is two-deferential standard of review on a collateral review.

[00:11:55] Speaker 03:
We need to respect the finality of judgments, and that's what the Supreme Court has taught us in many, many cases.

[00:12:03] Speaker 03:
And ten years after the judgment in this case, we're way down the road, and in terms of

[00:12:11] Speaker 03:
what Freddy says, it makes clear that the substantial likelihood standard is higher than, more rigorous in terms of a burden of proof than the plain error standard.

[00:12:20] Speaker 03:
So I think there is a difference.

[00:12:21] Speaker 03:
What's substantial likelihood mean?

[00:12:23] Speaker 03:
It's not 25 percent or 51 percent.

[00:12:26] Speaker 03:
I'd peg it more like 80 to 85 percent.

[00:12:30] Speaker 03:
That's a substantial likelihood of

[00:12:33] Speaker 03:
success in the event of any retrial.

[00:12:36] Speaker 02:
Why doesn't the four-part test that we have adopted for the Quorum Novus petition satisfy the concerns that were raised in Frady?

[00:12:43] Speaker 02:
Because in my view, you do.

[00:12:44] Speaker 03:
Well, in answer to your question, I think Frady provides the definition, the actual, not the standard, for what a fundamental error is.

[00:12:55] Speaker 03:
I think they're to be read together.

[00:12:57] Speaker 03:
I think the fourth element in the Kroytor case, if I'm pronouncing that correctly,

[00:13:01] Speaker 03:
How do you hash that out?

[00:13:04] Speaker 03:
What's that mean?

[00:13:05] Speaker 03:
What does he have to prove?

[00:13:06] Speaker 03:
And Frady provides the standard for the defendant's burden of proof.

[00:13:11] Speaker 02:
Would you agree with me that the second prong of the Coramnobus test requiring valid reasons for the delay is the equivalent of the cause requirement in Frady?

[00:13:18] Speaker 02:
Would you agree with me?

[00:13:19] Speaker 02:
I do.

[00:13:20] Speaker 02:
Okay.

[00:13:20] Speaker 02:
And would you agree with me that the fourth prong of the Coramnobus test, which is the fundamental error, is the equivalent of the prejudice requirement under Frady?

[00:13:29] Speaker 03:
Under Frady, yes.

[00:13:30] Speaker 03:
but not under the, well, let me strike that, or buy that back.

[00:13:36] Speaker 03:
You said the word equivalent.

[00:13:38] Speaker 03:
That's a word doing a lot of heavy lifting in that question.

[00:13:42] Speaker 03:
I disagree with the notion that they are equivalent.

[00:13:45] Speaker 03:
As I was mentioning earlier, I think the substantial likelihood test under FRETI, the actual cause standard,

[00:13:52] Speaker 03:
the cause and actual prejudice standard is far higher than the plain error standard.

[00:13:57] Speaker 03:
So I completely disagree with the notion that the fourth element of plain error review is equivalent to the most fundamental character, error of the most fundamental character as hashed out in the Frady's cause and actual prejudice standard.

[00:14:15] Speaker 03:
So in terms of just the facts,

[00:14:18] Speaker 03:
I think it's best to sort of, what at the time of the offense in October of 2013, what did the defendant know about his legal status?

[00:14:30] Speaker 03:
And the court made clear, the district court made clear, and I think this is an important part of this case.

[00:14:36] Speaker 03:
One standard of review we haven't talked about is that applicable to the district court's findings.

[00:14:42] Speaker 03:
They should only be reversed if they are illogical, implausible, or totally unsupported by the record.

[00:14:48] Speaker 03:
The defendant doesn't come close to establishing that burden of establishing plain error as to the court's findings.

[00:14:54] Speaker 04:
Is the case just based on that?

[00:14:56] Speaker 03:
Yes.

[00:14:57] Speaker 04:
I think that's the- Because we've got some thorny issues here that might be difficult to wade through.

[00:15:02] Speaker 04:
Could we just view this case hard as a clear error by the district court?

[00:15:10] Speaker 03:
A review?

[00:15:11] Speaker 03:
That there was no clear error, that that's the standard, that that really ought to be the key focus?

[00:15:15] Speaker 03:
That is my view.

[00:15:17] Speaker 03:
And if the focus is on the factual findings made by the district court under plain error or the Frady standard, I'll make it simple, the result is the same.

[00:15:29] Speaker 03:
The judgment should be affirmed.

[00:15:32] Speaker 05:
In what sense was the district court making factual findings?

[00:15:34] Speaker 05:
Wasn't it just reviewing the record of the trial?

[00:15:41] Speaker 05:
Not a direct appeal, but basically an appellate function of reviewing this, right?

[00:15:46] Speaker 05:
So why is that reviewed deferentially by us?

[00:15:49] Speaker 03:
Because the district judge in this case was the trial judge.

[00:15:55] Speaker 03:
He sat through the testimony long ago, but we did provide him with, he had available the transcript of the trial.

[00:16:03] Speaker 03:
We made heavy reliance on it at the hearing in our opposition to the Corum Nobis petition and at the hearing on that petition.

[00:16:10] Speaker 04:
So that's why we believe, and there are findings- If this had been a quorum nobis from a state proceeding and it was a federal district court review in that, we would not be able to provide clear error under that theory because under your argument, he wouldn't have been making factual findings because he didn't sit through the trial.

[00:16:33] Speaker 03:
I don't know the answer as to state cases.

[00:16:37] Speaker 03:
I know there are different rules applicable to habeas cases.

[00:16:40] Speaker 04:
I'm just saying the federal, I mean, I guess there's a separate point whether the state court made any factual findings, but the district court under your theory in my hypothetical would not have been making any factual findings.

[00:16:51] Speaker 04:
You're saying he was making factual findings here because he sat through the trial in the

[00:16:56] Speaker 03:
If we had had an evidentiary hearing on the Corum Nobis petition, the hearing that the judge held on that, that would be different.

[00:17:03] Speaker 03:
However, I didn't feel the need to further develop the record because we relied so heavily on the record at trial.

[00:17:13] Speaker 03:
The defendant testified.

[00:17:14] Speaker 03:
There was full cross-examination.

[00:17:16] Speaker 03:
But maybe to Judge Miller's point, maybe we can't do clear.

[00:17:19] Speaker 04:
I mean, at the end of the day, what factual findings can he make?

[00:17:24] Speaker 04:
Because the inquiry here is not, the inquiry isn't whether there's actual factual findings, but to what level they satisfy under the current, whatever standard we apply under court of novas.

[00:17:35] Speaker 03:
Well, in applying the de novo review,

[00:17:38] Speaker 03:
The court does nonetheless make clear in its precedent that it's deferential to the findings of the district court under a clear error standard.

[00:17:49] Speaker 03:
Let me just point out a couple of things.

[00:17:51] Speaker 03:
At the time he possessed the firearms,

[00:17:53] Speaker 03:
He had received, a year before, the letter from CIS saying, you were previously deported, you have no legal status here in the country, and your green card is invalid.

[00:18:04] Speaker 03:
And basically, you shouldn't be here at all.

[00:18:06] Speaker 03:
And your green card is invalid.

[00:18:09] Speaker 03:
He knew that.

[00:18:09] Speaker 03:
We have testimony on this.

[00:18:11] Speaker 03:
The court can find it, page 669 to 670 in the excerpts of record, volume three.

[00:18:21] Speaker 03:
On cross-examination, he admitted,

[00:18:23] Speaker 03:
that at the time, in October 2012, he received the letter, read it, understood it.

[00:18:27] Speaker 03:
So it wasn't unclear to him.

[00:18:31] Speaker 03:
Plus, he already had a lawyer by that time that he previously, well, he had a lawyer back in 2000 and 2001 when he was first pursuing an effort to vacate the deportation order.

[00:18:47] Speaker 03:
But then, as Judge Miller noted, the extension sticker on the back of the card, on the back of the green card that he received during the pendency of his application to get a renewed green card, it states clearly it expires in the month and year indicated, and it's indicated April 2013.

[00:19:08] Speaker 03:
Six months before, he was found in possession of the five firearms in this case.

[00:19:14] Speaker 03:
So by that time, it was crystal clear.

[00:19:17] Speaker 03:
He got a letter from CIS and his extension sticker had expired.

[00:19:21] Speaker 03:
He has no basis in the record for believing that his green card gave him any lawful residency status.

[00:19:27] Speaker 03:
And that's especially true given that he was present at the deportation hearing.

[00:19:33] Speaker 03:
Contrary to the suggestion, he was bewildered by the

[00:19:37] Speaker 03:
He had an interpreter throughout the proceedings and he hired a lawyer in 2000 to challenge the deportation order.

[00:19:47] Speaker 03:
He got deported in 2003, came back

[00:19:51] Speaker 03:
And we cite two cases, Second Circuit and Seventh Circuit case that make clear, you know, it's a pretty clear indication that you're not welcome in the country when you're physically removed by border officers and that his claim that, oh, he waved through as he walked through the border literally a day or two later with his green card that he was under the impression that

[00:20:15] Speaker 04:
We've got case law that has rejected that as a basis, right?

[00:20:19] Speaker 04:
Don't we have case law that said just because they don't take action when you show your card is not a reasonable basis?

[00:20:26] Speaker 03:
I believe we cited two cases, three cases, one of which I think included a Ninth Circuit case.

[00:20:36] Speaker 03:
Oh, I think I'm out of time.

[00:20:39] Speaker 03:
Yeah, you're on the red.

[00:20:40] Speaker 03:
Thank you, counsel, for your arguments.

[00:20:42] Speaker 04:
Thank you very much.

[00:20:49] Speaker 01:
I would agree with counsel that it is important to look at that testimony at 4ER669 through 670 because you can tell that Mr. Cervantes is trying to explain something further when he's asked about the letter that he received.

[00:21:03] Speaker 01:
And I think that's the problem with the district court relying on the trial testimony exclusively and not looking at the entire record is that

[00:21:12] Speaker 01:
At the trial, this wasn't a defense.

[00:21:14] Speaker 01:
He wasn't allowed to explain.

[00:21:16] Speaker 01:
Menzeria was irrelevant.

[00:21:17] Speaker 02:
The significance of this point, not just with respect to the testimony, but also in the closing argument, the sort of significant links that the government took to try to cover up this notion that Mr. Cervantes was trying to explain that he did, in fact, believe that he had a legitimate

[00:21:38] Speaker 02:
reason to think that his green card was effective.

[00:21:41] Speaker 02:
As I read it, it wasn't just that there was an instruction that was missing, but that the prosecutor reminded the jury that his confusion about his status has no relevance whatsoever.

[00:21:53] Speaker 02:
So what's the significance of that?

[00:21:55] Speaker 01:
Well, that is exactly the problem because that was what Mr., that's really, this is a major due process issue that his defense in this case, and this is really unusual when we look at all of the other cases.

[00:22:09] Speaker 01:
I would bet this is the only time this has ever happened that somebody actually had this defense that turned out to be correct.

[00:22:17] Speaker 01:
He did not, he firmly believed he was innocent because he had legally entered the country.

[00:22:25] Speaker 01:
That was not true under the law.

[00:22:28] Speaker 04:
Because he legally entered the country when?

[00:22:31] Speaker 01:
When he presented his green card.

[00:22:34] Speaker 04:
But that's not enough to say that you believe that you've legally entered the country.

[00:22:37] Speaker 01:
Well, he has always maintained that.

[00:22:40] Speaker 04:
I understand that, but I don't think that we can find as a holding that somebody who walks through border security and shows a card that he, I mean, you could have all kinds of fraudulent cards.

[00:22:53] Speaker 01:
Well, absolutely.

[00:22:54] Speaker 01:
But you're just saying.

[00:22:55] Speaker 01:
I'm saying that's what he believed.

[00:22:57] Speaker 02:
He was absolutely wrong about that.

[00:22:59] Speaker 02:
I have a question about a factual issue that I'm confused about.

[00:23:02] Speaker 02:
Yeah.

[00:23:03] Speaker 02:
So I see in the record that there was an issue about his release on bond.

[00:23:07] Speaker 02:
that, in fact, initially his bond was set at a very high amount, then there was an actual order from the court denying him release on bond, and then two weeks later he was, and I know that your client is arguing that this progression and ultimately his release on bond for $3,000 further supported his belief that the error had been corrected, this confusion that he thought was pervasive in his case had sort of been rectified and therefore he was allowed.

[00:23:37] Speaker 02:
What actually happened?

[00:23:39] Speaker 02:
So I understand his argument, but was there an error that allowed his release on Bond after he had been ordered to not be released on Bond?

[00:23:47] Speaker 01:
His deportation occurred at a very odd time in immigration law.

[00:23:51] Speaker 01:
It was in 1996.

[00:23:53] Speaker 01:
Iriah and Adepa had just come down, and courts didn't really know what to do about it.

[00:23:57] Speaker 01:
And so he was advised at the time that he was not eligible for Bond.

[00:24:01] Speaker 01:
And then later on, it was

[00:24:04] Speaker 01:
determined, I'm not sure that, it was before the, he was also told he didn't have, he wasn't eligible for 212C relief, which the Supreme Court in St.

[00:24:13] Speaker 01:
Sur later held that he was eligible for St.

[00:24:16] Speaker 01:
Sur, but his appeal had already been denied at that point.

[00:24:21] Speaker 01:
It was just a very strange time in immigration.

[00:24:23] Speaker 02:
So these changes that were occurring would support his view that maybe in fact there had been a change or somebody had sort of alerted

[00:24:33] Speaker 02:
the officials to his status, thereby allowing him to now be released when he had previously been denied eligibility.

[00:24:42] Speaker 01:
That is what he believed.

[00:24:44] Speaker 01:
To your point, it wasn't correct what he believed, but when we're looking at this test, we're looking at the defendant's subjective belief.

[00:24:56] Speaker 02:
And that's an element that the prosecutor needs to prove.

[00:25:01] Speaker 04:
That's right, but here we're looking at whether ... There has to be an overlay of something to say whether that belief was reasonable or ... Because, I mean, if you were arguing this today, yes, you'd have that defense, but now we're looking at Quorum Nobis, we have to be asking whether that belief was reasonable in some sense.

[00:25:22] Speaker 01:
I would just say that the government just said that it's an 80% standard, and it's definitely below 50%.

[00:25:30] Speaker 01:
I'm just saying, look, let's let him go to trial and present this defense, and he might lose.

[00:25:35] Speaker 02:
The issue that Judge Nelson is talking about, which is whether or not his belief was reasonable, that's for a jury to decide.

[00:25:41] Speaker 02:
It's for a jury to decide.

[00:25:42] Speaker 04:
But not once a finality has been decided.

[00:25:45] Speaker 04:
That's for us to decide whether we have to take that into account in some degree in order to grant him quorum nobis relief.

[00:25:52] Speaker 01:
Well, the issue is whether this was a fundamental error and in most cases.

[00:25:56] Speaker 04:
And that has an overlay of whether there was some sort of reason.

[00:26:01] Speaker 04:
I don't know what we're going to have to have a debate about what that standard is, but whether it was reasonable, whether it was 20 percent, whether it was 50 percent, whether it was 80 percent.

[00:26:10] Speaker 04:
We can't just say, oh, he believed that you get relief.

[00:26:14] Speaker 01:
No, I'm asking for a remand.

[00:26:16] Speaker 01:
The remedy that we're asking for is remand for retrial or remand.

[00:26:22] Speaker 04:
No, but even to get that relief, you can't just come in and say, he subjectively had this belief, therefore he gets Corum Nobis relief.

[00:26:33] Speaker 04:
We have to apply some overlay to that on this review, right?

[00:26:37] Speaker 01:
Well, I mean, I would agree.

[00:26:38] Speaker 04:
I mean, you would agree that if we said he has a 2% chance of winning,

[00:26:43] Speaker 04:
That's not enough to get quorum novus relief, right?

[00:26:47] Speaker 01:
That's correct.

[00:26:47] Speaker 01:
That's my only point.

[00:26:48] Speaker 01:
I do have to meet that standard for sure.

[00:26:50] Speaker 04:
You can't just come in and say, the record shows he did.

[00:26:54] Speaker 04:
We have to apply some sort of overlay standard.

[00:26:57] Speaker 01:
Yes.

[00:26:57] Speaker 01:
And typically, in these cases, there's absolutely no evidence.

[00:27:00] Speaker 01:
I mean, when you look at all of these, this is the rare case where there is evidence.

[00:27:05] Speaker 01:
I understand.

[00:27:07] Speaker 04:
Okay.

[00:27:08] Speaker 04:
Thank you.

[00:27:08] Speaker 04:
We've taken you over, but we appreciate both counsel for your arguments.

[00:27:12] Speaker 04:
And the case is now submitted.