[00:00:06] Speaker 04: And we will hear first from Ms. [00:00:09] Speaker 04: Windsor. [00:00:10] Speaker 04: You may proceed. [00:00:11] Speaker 00: Good morning, Your Honors. [00:00:12] Speaker 00: May it please the Court? [00:00:13] Speaker 00: My name is Katherine Kimball Windsor, and I represent the appellant, Armando Molina. [00:00:18] Speaker 00: I'd like to reserve four minutes for rebuttal. [00:00:21] Speaker 04: Excuse me, four? [00:00:22] Speaker 04: Four. [00:00:23] Speaker 00: We raised three Sixth Amendment claims in this case. [00:00:27] Speaker 00: And unless the Court prefers otherwise, I thought I would start with the McCoy right to maintain factual innocence issue and then move to the Speedy Trial claim. [00:00:37] Speaker 00: So starting with that McCoy claim, in a series of cases over the past 50 years, the Supreme Court has delineated decisions that a criminal defendant who is represented by counsel retains pursuant to the Sixth Amendment. [00:00:52] Speaker 00: And the lawyer gets to make, really, most of the decisions. [00:00:55] Speaker 00: The lawyer decides what motions to file, what witnesses to call, what objections to make, the things that we think of as trial management or strategy. [00:01:05] Speaker 00: But the defendant retains certain fundamental decisions that relate to the objectives of the defense and the personhood or autonomy of the defendant to determine those objectives. [00:01:17] Speaker 00: Those are whether to represent himself, that's from the Ferretta case, whether to plead guilty or go to trial, whether to waive a jury trial, whether to testify, whether to appeal, [00:01:31] Speaker 00: And in McCoy, the Supreme Court held that a criminal defendant has the right to insist that his lawyer maintain factual innocence and refrain from conceding or admitting factual guilt. [00:01:43] Speaker 02: Is there some place in the record that you can point to where Mr. Molina indicated that he was objecting to the presentation of an entrapment defense versus just objecting to presentation of gang-related evidence? [00:01:57] Speaker 00: The first, it first came up during trial when Mr. Molina, when his counsel asked to pause the trial and Mr. Molina said, and he is not an educated person and he didn't say it in the most elegant way, but he said something like, I wasn't told about the rewarding of this entrapment. [00:02:19] Speaker 00: I think he says sentencing entrapment. [00:02:21] Speaker 00: And what he was referring to was this, [00:02:26] Speaker 00: stipulation that had been discussed at the pretrial conference where the lawyer said we've come to this agreement with the government and the lawyer said we need to meet with our clients to review it before we submit it to the court and for some reason we don't know why that did not happen when the stipulation was filed it was only signed by [00:02:55] Speaker 00: the defense lawyers, there were two at that point, and it had been prepared by the other defense lawyer and the prosecutor. [00:03:03] Speaker 00: And so Mr. Molina, we have in volume nine of the excerpts, we have his emails that he submitted. [00:03:11] Speaker 00: He emailed his lawyer that night or the night before trial saying, what was decided? [00:03:18] Speaker 00: on that stipulation. [00:03:19] Speaker 00: I think he calls it frequently the rewarding or something about a rewarding, but it's clear that he's referring to the stipulation. [00:03:26] Speaker 00: And then in trial, the defense lawyer, well, first of all, the government started by saying, talking about all of the prejudicial evidence of gang membership and Mexican mafia affiliation [00:03:42] Speaker 00: And then in opening statement, the defense lawyer says that Mr. Molina did in fact deliver narcotics to a person who will be referred to as a confidential informant, and then promised that Mr. Molina would testify and admitted his gang membership, his prior conviction, and said that he would explain how he was entrapped. [00:04:02] Speaker 00: And both of those violated Mr. Molina's right to autonomy, to maintain his innocence, [00:04:08] Speaker 00: And this is structural error, which is not subject to harmless error review. [00:04:13] Speaker 03: Part of that autonomy includes his ability to change his mind. [00:04:17] Speaker 03: There is evidence in the record that he also at times supported the entrapment, was interested in it, was providing assistance to his counsel in establishing the entrapment. [00:04:30] Speaker 03: So what are we supposed to do with it where there's nothing that we can call kind of on its face, at least a formal objection to proceeding with that defense? [00:04:38] Speaker 00: I think that that objection that he made in court was a formal objection. [00:04:42] Speaker 00: But you're absolutely right. [00:04:44] Speaker 00: And that's very common in criminal cases, is that often clients are considering whether they want to plead guilty. [00:04:50] Speaker 00: They're considering, and they may go back and forth. [00:04:53] Speaker 00: I mean, we see that all the time, that during a plea colloquy, somebody changes their mind. [00:04:57] Speaker 00: we see that a client may be trying to consider whether to testify or not, and that's often a decision that's really made at the last minute after all of the government's evidence comes in, maybe even after defense witnesses have testified. [00:05:12] Speaker 00: So the fact just that it was on the table is not a waiver, is not of that [00:05:19] Speaker 03: of that right to maintain innocence because- How's the district court supposed to know, given these conflicting signals about the entrapment defense? [00:05:30] Speaker 03: When is the definitive objection that you'd point to, and was that a commitment where there's no further discussion or entrapment afterwards, or did he go back and forth again? [00:05:41] Speaker 00: Well, I think this was a really difficult case for the district court, because it's true. [00:05:45] Speaker 00: I mean, the only indication that the district court would have had was that the stipulation was only signed by the lawyers and not signed by the client. [00:05:58] Speaker 00: At that point, there was only one. [00:06:01] Speaker 00: So that was an indication. [00:06:03] Speaker 00: And really, from the district court's perspective, one would assume that the lawyer would have cleared this with his client. [00:06:12] Speaker 00: This is, though, such a profound violation of that right to autonomy that at the point that it arose in court, it was really after the beginning of trial that the district court would have [00:06:26] Speaker 00: really first been alerted to the fact that this had not been cleared. [00:06:30] Speaker 00: And I think one of the reasons we're asking for this bright line rule is so that it's clear to courts and to lawyers that if you're going to stand up an opening statement and admit that your client committed the crime, [00:06:46] Speaker 00: that you have to clear it with your client first. [00:06:50] Speaker 00: And really, at this point, Mr. Molina is about to get out of prison. [00:06:54] Speaker 00: He's almost served 13 years now. [00:06:58] Speaker 00: And so this isn't going to have a huge impact on him personally. [00:07:03] Speaker 00: But I think it's important for particularly defense lawyers to know that this is a bright line rule if you stand up and say, my client committed the crime. [00:07:15] Speaker 00: And it doesn't happen this often that you are putting on an affirmative defense. [00:07:20] Speaker 03: So is the bright line rule now that you're suggesting under McCoy that there has to be affirmative consent? [00:07:27] Speaker 03: That doesn't seem to be what McCoy requires. [00:07:30] Speaker 00: You know, I'm not actually saying that. [00:07:32] Speaker 00: And I do think that, you know, that I think probably the best practice, and a lot of district court judges do this in court, is if somebody is choosing not to testify, they sometimes [00:07:45] Speaker 00: do speak to the defendant directly, but it's generally not required that there's something on the record, for example, that says that the defendant has chosen not to testify. [00:07:54] Speaker 00: The lawyer is an officer of the court, and you can assume that that's happened when the lawyer says that. [00:08:01] Speaker 00: I do think that often the best practice is for judges, for those big questions, to check in with the defendant and just make sure, hey, you know you have the right to testify. [00:08:10] Speaker 00: Are you knowingly [00:08:13] Speaker 00: Deciding not to testify to give up this right. [00:08:16] Speaker 02: So what can we say consistent with McCoy? [00:08:18] Speaker 02: That would be a Bright line. [00:08:20] Speaker 00: Yeah, I think I think it's it's it really is just that simply that a lawyer cannot Cannot concede Factual guilt has to maintain the clients factual innocence unless the client says that [00:08:36] Speaker 00: unless the client waves that right or tells the lawyer, yeah, let's go forward with entrapment. [00:08:42] Speaker 00: Let's do not guilty by reason of insanity. [00:08:46] Speaker 04: What does that mean in terms of factual innocence if legal innocence is maintained? [00:08:53] Speaker 04: How would you apply such a bright line, you know, if you concede four elements but contest the fifth, but the fourth is the actus reus, so you can say, I mean, is that factual? [00:09:03] Speaker 04: That's part of the problem with drawing this line. [00:09:05] Speaker 00: I think if you are contesting one of the elements, then I think arguably you're outside of this rule. [00:09:14] Speaker 00: I'm talking about when you are conceding all of the elements. [00:09:18] Speaker 04: Is this a rule about defenses? [00:09:21] Speaker 00: It's really a rule about the right to maintain innocence. [00:09:26] Speaker 00: I think it's going to come up mostly for affirmative defenses, affirmative, you know, entrapment, insanity, duress, the other affirmative defenses. [00:09:37] Speaker 00: And I think they all have unusual quirks about them. [00:09:40] Speaker 00: I mean, in Reed, the insanity case, the court's alternative holding was that it also [00:09:49] Speaker 00: It violated because there was imprisonment. [00:09:53] Speaker 00: If you win on insanity, you're not going to walk out the door. [00:09:58] Speaker 00: Here for entrapment, the unusual quirk is that you're pretty much always going to have to testify. [00:10:03] Speaker 00: And so if you're going forward on an entrapment defense without your client's consent, then you're also basically, as what happened in this case, saying, [00:10:15] Speaker 00: My client's going to testify. [00:10:16] Speaker 00: And so that's the additional violation of the right to autonomy that happened here, because that is a decision that remains with the defendant. [00:10:25] Speaker 00: Do you want to address the speaking trial issue? [00:10:27] Speaker 00: Yes, I do. [00:10:28] Speaker 00: Thank you. [00:10:29] Speaker 00: Oh, am I? [00:10:31] Speaker 00: All right, I'll do that. [00:10:32] Speaker 00: I'll do that. [00:10:32] Speaker 04: I'll give you extra time. [00:10:33] Speaker 04: We've asked you a lot of questions. [00:10:34] Speaker 00: OK. [00:10:36] Speaker 00: So the Speedy Trial Act claim, this issue really dovetails with the request for new counsel in this case. [00:10:44] Speaker 00: And I wanted to just clarify one little fact that was a little unclear in the briefing. [00:10:48] Speaker 00: There was the first counsel who was on the case for, I don't know, three to four years. [00:10:54] Speaker 00: And starting at year three, Mr. Molina started objecting and asking for new counsel and just saying, nothing's happening on this case, and I want to move forward. [00:11:04] Speaker 00: At some, I think in one of the briefs it said that the court then finally appointed new counsel, but what actually happened was that Mr. Molina persuaded a lawyer without any federal experience to take his case for free. [00:11:21] Speaker 00: just to do it to get the experience. [00:11:24] Speaker 00: And that really shows just how desperate he was. [00:11:28] Speaker 00: Again, this was something that the district court didn't know at the time. [00:11:31] Speaker 00: The district court was immediately concerned with the lack of representation that was happening, and the lawyer wasn't showing up and was missing deadlines, and even there was an OSC issued at some point. [00:11:49] Speaker 00: But then, and then when the final lawyer, the third lawyer was appointed, the case went to trial nine months later, which I think is about right. [00:11:56] Speaker 00: That's the amount of time you would expect in this fairly simple case. [00:12:02] Speaker 00: This is a really extreme situation where the- I guess to take the [00:12:07] Speaker 03: Parallel argument that you that didn't happen on the McCoy claim and in this case he did consent In writing I believe to all but two of the continuances. [00:12:17] Speaker 03: So what are we supposed to do with that? [00:12:19] Speaker 00: Yeah, so I think I mean Honestly, I think as soon as we have one that's enough, you know one objection there really are two and there's this this one that's the [00:12:30] Speaker 00: January 2017, where the government made this great chart on page seven of their briefing, where at that point the lawyer agreed, but Mr. Molina did not agree. [00:12:45] Speaker 00: And that happened during the whole, where he was requesting new counsel. [00:12:51] Speaker 00: There was a lot going on at that point. [00:12:53] Speaker 00: And then the other thing is that he filed at 2ER92, this pro se motion, where he says that this delay in this simple case is an inexcusable amount of time that justifies dismissal with prejudice. [00:13:15] Speaker 00: So we would submit that just right there that he moved to dismiss the case with prejudice. [00:13:21] Speaker 00: And I am way over my time. [00:13:24] Speaker 00: Thank you. [00:13:25] Speaker 04: As I said, we asked you a number of questions. [00:13:28] Speaker 04: I'll give you the four minutes you requested in remote. [00:13:31] Speaker 04: And so we'll hear now from Mr. Miller Gutnick. [00:13:45] Speaker 01: Thank you, Your Honors. [00:13:46] Speaker 01: And may it please the Court, Ben Miller Gutnick for the United States. [00:13:49] Speaker 01: Defendant Armando Molina's six convictions should be affirmed. [00:13:53] Speaker 01: I'll begin with the McCoy issue and then move to the others. [00:13:56] Speaker 01: On McCoy, there's a more case-specific and a more general way to resolve this issue, and we win under either. [00:14:02] Speaker 01: The case-specific route focuses on the threshold question for the court in a McCoy challenge, which is, what did the defendant expressly object to? [00:14:09] Speaker 01: That's because under McCoy and its discussion of Florida versus Nixon, it's only defendants express objections that count. [00:14:17] Speaker 01: Here, Molina expressly objected only to the evidentiary stipulation. [00:14:21] Speaker 01: That's clear at record 1702 to 03. [00:14:24] Speaker 01: Judge Thomas, your first question is exactly right. [00:14:26] Speaker 01: We think that's all he objected to here. [00:14:29] Speaker 01: So the court could simply hold that the only question here is whether Molina has a McCoy right to veto an evidentiary stipulation and that he does not. [00:14:37] Speaker 03: I guess, speaking of express objections, where did you develop this in your briefing? [00:14:42] Speaker 01: So we say at 25 that Mr Molina expressly objected only to the evidentiary stipulation. [00:14:47] Speaker 01: That's when we first discussed this issue, and that's how we frame it as our lead point. [00:14:51] Speaker 01: We think that it's very clear at 1702-03 that what he's objecting to is the stipulation. [00:14:56] Speaker 01: He describes [00:14:57] Speaker 01: being uninformed about the rewording. [00:15:00] Speaker 01: We think he's saying the rewording that they did to it on Wednesday that was due on Wednesday or Thursday. [00:15:04] Speaker 01: There he's referring to that final pre-trial conference where they were discussing the stipulation. [00:15:09] Speaker 01: He said, I was never consulted and I never agreed to it from the beginning. [00:15:12] Speaker 01: Also, we think at 24 of his brief, Molina says, Mr. Molina objects to the stipulation. [00:15:17] Speaker 01: And just now at argument I took counsel to agree that what he's referring to there is to the stipulation and discussing whether or not that was shared with him, but that his objection really was just to the stipulation. [00:15:27] Speaker 01: And certainly we think that's the only thing he expressly objected to, which is what McCoy requires. [00:15:33] Speaker 01: The more general route, though, here would be to hold that even where a defendant objects more broadly to either arguing entrapment or to conceding offense elements, McCoy and Reed give defendants only the right to determine the fundamental objective of the representation. [00:15:47] Speaker 01: And that fundamental objective means only the sought disposition, which of the three federal verdict doors of guilty, not guilty, or not guilty only by reason of insanity he wants to pursue. [00:15:56] Speaker 01: In McCoy, the Supreme Court held that where a defendant wants to seek a not guilty verdict, [00:16:02] Speaker 01: counsel can't ask for a guilty verdict. [00:16:04] Speaker 01: In Reed, this court likewise held that where a defendant wants to seek a clean not guilty verdict, counsel can't ask for a verdict of not guilty only by reason of insanity, a separate federal verdict that would result in confinement if successful. [00:16:17] Speaker 01: Here, counsel pursued Molina's chosen objective by presenting a defense that, if successful, would have resulted in Molina's sought not guilty verdict. [00:16:25] Speaker 01: That is all McCoy requires. [00:16:27] Speaker 01: A broader rule would have McCoy swallow Strickland, letting defendants challenge all sorts of tactical calls without showing prejudice. [00:16:32] Speaker 04: That line, how would you handle a situation in which [00:16:39] Speaker 04: The client wants a complete not guilty verdict, but the lawyer concedes to a lesser included. [00:16:49] Speaker 04: Which side of your line would that fall on? [00:16:52] Speaker 01: So I think the Second Circuit in Rosemond has held that. [00:16:56] Speaker 01: It depends whether that's an issue in this case. [00:16:57] Speaker 01: So in the present case, if there were several charges, the counsel couldn't concede to any of them. [00:17:03] Speaker 01: But if there's something else that theoretically might [00:17:06] Speaker 01: be a crime, counsel could concede to elements that would establish that. [00:17:10] Speaker 01: And we think that's what the Second Circuit held in Rosemond, where a defendant objected to counsel conceding that he performed the actus reus of hiring a hitman, but argued that he lacked the necessary mens rea for that crime. [00:17:21] Speaker 01: And the court there held that that was not structural error, because McCoy, quote, is limited to a defendant preventing his attorney from admitting he is guilty of the crime with which he is charged. [00:17:30] Speaker 01: That's at 123 in Rosemond. [00:17:34] Speaker 04: Is it admitting to the guilt of the crime of which you have been charged if you concede all of the elements that say that there's an applicable defense? [00:17:43] Speaker 01: No, we don't think that's right. [00:17:44] Speaker 01: We think the McCoy right is limited to saying, if a client wants to pursue a not guilty verdict, counsel can't ask the jury for a guilty verdict. [00:17:53] Speaker 01: But we do think that allows putting on affirmative defenses. [00:17:56] Speaker 01: And we think this court has held that in Christian, where it held that a client lacks the right to veto presentation of a defensive self-defense. [00:18:02] Speaker 03: Haven't we also discussed the McCoy right as a concession of factual guilt? [00:18:07] Speaker 03: And wouldn't that be what this is? [00:18:09] Speaker 03: The verdict line you draw seems clear and maybe easier to apply, but I'm not seeing that. [00:18:16] Speaker 03: I'm seeing a concession of factual guilt. [00:18:18] Speaker 01: So I don't think that's what those cases say, red in their best light. [00:18:21] Speaker 01: But I do want to start just by emphasizing first that Mr. Molina never objected to that. [00:18:26] Speaker 01: Again, we think that under McCoy, you have to expressly object. [00:18:29] Speaker 01: And Mr. Molina here never said, counsel, argue I didn't sell the drugs. [00:18:32] Speaker 01: I want to maintain factual innocence or anything like that. [00:18:35] Speaker 01: So we just don't think this case presents that question. [00:18:38] Speaker 01: But to that question, no. [00:18:39] Speaker 01: We think that the proper rule is that [00:18:40] Speaker 01: As long as the counsel pursues the client's sought not guilty verdict, there's no McCoy challenge. [00:18:45] Speaker 01: We think a contrary rule would have McCoy swallow Strickland. [00:18:48] Speaker 01: And here's why. [00:18:49] Speaker 01: We think, as Judge Collins pointed out, there are all sorts of particular elements that might carry stigma and a client might really, really not want to admit. [00:18:57] Speaker 01: So you can imagine if the rule, you know, the theory of a rule that says a client would have an interest in not conceding all of the elements. [00:19:04] Speaker 01: There are crimes where even conceding one of the elements, a client might really strenuously object to that. [00:19:09] Speaker 01: And then we're really off to the races. [00:19:10] Speaker 01: You could imagine that a client might say, admitting these text messages, for example, that show evidence of an affair, my fundamental objective is to avoid having those come in. [00:19:20] Speaker 01: And then McCoy has swallowed Strickland, because all sorts of tactical calls for which Strickland is the proper vehicle, including things that counsel mentioned today, issues in the opening and the like, we think for those types of tactical challenges, Strickland is the proper vehicle. [00:19:32] Speaker 03: McCoy itself wasn't about the verdict. [00:19:33] Speaker 03: It was about the sentence. [00:19:35] Speaker 01: We think that in McCoy, the issue was that counsel conceded guilt over the client's objection. [00:19:40] Speaker 01: We think that counsel's reason for doing so was conceding guilt on some charges to avoid others. [00:19:46] Speaker 01: But we think the basic principle of that case was that you can't concede guilt over your client's objection. [00:19:51] Speaker 01: But again, I do think it's important to note that here, Mr. Molina did not object to conceding factual innocence. [00:19:56] Speaker 01: He never said anything of that nature. [00:19:59] Speaker 01: So because under McCoy and under Florida versus Nixon, which McCoy discusses in its opening paragraph, [00:20:04] Speaker 01: The client has to expressly object to something his attorney did. [00:20:08] Speaker 01: We just don't think that that's presented in this case. [00:20:13] Speaker 01: Molina suggests in reply this broader rule, which he discussed here today, that conceding all the offense elements or arguing entrapment but not doing so in the alternative could be a problem. [00:20:23] Speaker 01: As I've mentioned, it's only his express objections that count, so that's not presented here. [00:20:27] Speaker 01: But we also do think that rule is wrong more generally. [00:20:30] Speaker 01: As I've discussed, we think it would open the floodgates because it would not be administrable in any way. [00:20:34] Speaker 01: We think this verdict-based approach is the only administrable approach. [00:20:37] Speaker 01: And we think it would lead to McCoy swallowing Strickland, because instead of having defendants bring Strickland challenges to these tactical calls, they're now off to the races, recasting them as fundamental objectives. [00:20:50] Speaker 01: Unless the court has further questions on this issue, I'll turn to the substitution of counsel issue. [00:20:54] Speaker 01: There, we think the district court did not abuse its discretion when it did not appoint new counsel on the third day of trial. [00:21:01] Speaker 01: District courts have wide discretion to reject mid-trial requests for substitution of counsel, particularly as Mendes Sanchez discusses at 944, where a defendant has a history of failing to work collaboratively with multiple counsel. [00:21:13] Speaker 01: We think the district court here properly exercised the discretion and sufficiently explained its decision. [00:21:18] Speaker 01: And then finally, on the Speedy Trial Act issues, the district court did not plainly err by not dismissing the indictment under the Speedy Trial Act or Fifth or Sixth Amendments, claims Molina raises for the first time on appeal, and so plain error review applies. [00:21:31] Speaker 01: Molina waived his statutory challenge by failing to seek dismissal under the Speedy Trial Act in the district court. [00:21:36] Speaker 01: And the only place that he in his briefs and today has referenced that he's sought such a dismissal, we think, did not constitute that motion, but in any event was withdrawn and so cannot count as such a motion. [00:21:46] Speaker 04: So is the dismissal a total borer, or do we still review even the Speedy Trial Act for plain error, or is it just the Sixth Amendment we reviewed for plain error? [00:21:56] Speaker 01: I think if you're asking on the first issue, if you rule for us, I don't think you necessarily need to reach the second issue. [00:22:01] Speaker 01: I think the third would lead to dismissal of the complaint. [00:22:04] Speaker 01: So the court should say that that was not plain error. [00:22:08] Speaker 01: We also think that the challenge is meritless because Molina sought or consented to nearly every continuance. [00:22:14] Speaker 01: As counsel just discussed, it seems we're really narrowed just to these two continuances. [00:22:19] Speaker 01: And even on those, we think the district court sufficiently explained its reasons for excluding time, certainly under plain error review. [00:22:26] Speaker 01: His constitutional claims are likewise meritless because there was no plain error violation of the Barker speedy trial test. [00:22:32] Speaker 01: Unless the court has further questions, we'd respectfully ask that the court affirm. [00:22:37] Speaker 04: Thank you. [00:22:38] Speaker 04: Thank you, counsel. [00:22:40] Speaker 04: We'll hear a bottle from Ms. [00:22:43] Speaker 04: Windsor. [00:22:50] Speaker 00: Thank you. [00:22:50] Speaker 00: I just wanted to read exactly what the objection was. [00:22:55] Speaker 00: Mr. Molina said. [00:22:56] Speaker 00: What page are you on? [00:22:58] Speaker 00: I'm reading from my brief, page 24. [00:23:00] Speaker 00: I can submit the excerpts site as well. [00:23:05] Speaker 00: But he says, I was never consulted about this sentencing entrapment, about the entrapment thing, about the rewarding they did to it on Wednesday. [00:23:16] Speaker 00: he's clearly referring to the stipulation. [00:23:18] Speaker 00: And this is really the heart of our argument, that he was objecting to this entrapment defense that was being presented without his consent and over his objection. [00:23:32] Speaker 00: And what comes with entrapment is that you are admitting the elements of the offense, which is what happened in this case. [00:23:39] Speaker 00: Now, there are some sort of [00:23:44] Speaker 00: borderline issues where there is an entrapment offense that is run in the alternative or is, you know, in the Christian case where the defense lawyer said, look, it wasn't my client who committed that assault, but if it was him, whoever it was, was acting in self-defense. [00:24:06] Speaker 00: And those marginal issues are different here [00:24:12] Speaker 00: what Mr. Molina's objection was to this stipulation which was presenting the entrapment defense which involved admitting the elements because that's just I mean that is with classic entrapment that's what happens and with saying that he was going to testify. [00:24:29] Speaker 00: Ultimately he did not testify which also shows that this was done over his objection. [00:24:36] Speaker 00: He is a pro se defendant at this point and [00:24:42] Speaker 00: the government in both this issue and on the Speedy Trial Act issue is really requesting that just the perfect objection be made, which this court in many contexts recognizes that for defendants who are [00:24:59] Speaker 00: who are an inappropriate persona, that they are given leeway to some extent. [00:25:03] Speaker 04: Let's argue that even if you construe the objection made as going not just to the evidentiary stipulation, but to entrapment, that he still would win because it has to be essentially that the lawyer is stipulating to legal guilt. [00:25:26] Speaker 00: Well, I mean, here, [00:25:29] Speaker 00: And that's the same argument that happened in Reid as well. [00:25:33] Speaker 00: I mean, Reid, this court ruled on two grounds. [00:25:36] Speaker 00: The first ground is that an insanity defense could violate the McCoy right to maintain factual innocence. [00:25:45] Speaker 00: But also in insanity, there are these other issues that are unique to insanity. [00:25:51] Speaker 00: But the court clearly ruled that McCoy concerns the right to maintain factual innocence. [00:26:00] Speaker 02: The trouble I'm having is that I'm looking at 1702, which I think is what you quoted, where he says, I was never consulted about the sentencing entrapment thing, about the rewarding that they did to it on Wednesday. [00:26:18] Speaker 02: He says, I never agreed to it from the beginning. [00:26:21] Speaker 02: It's hard for me to read that as having to do with anything other than the stipulation, because there are other parts of the record where [00:26:29] Speaker 02: For instance, he says, I was trying to get discovery for my entrapment defense. [00:26:33] Speaker 02: I think that's 1751 in the record. [00:26:36] Speaker 02: So I just wonder, what's the district court supposed to do with it? [00:26:39] Speaker 02: I mean, I think you answered that question earlier. [00:26:41] Speaker 02: And I'm not sure I'm asking a question, but just sort of describing that it's hard to read the record as Mr. Molina clearly stating that he doesn't want this entrapment. [00:26:51] Speaker 00: Yeah. [00:26:51] Speaker 00: I mean, this was just the only chance that he had to do it. [00:26:56] Speaker 00: this stipulation was done really right on the eve of trial. [00:27:00] Speaker 00: And entrapment, when you're looking at just from this macro perspective, just on a gut level, this is something that goes to the heart of what the case is, what the objective of the case was. [00:27:16] Speaker 00: This is not something that a lawyer would ever do without consulting their client. [00:27:23] Speaker 00: To stand up in opening statement and say, [00:27:26] Speaker 00: my client committed these crimes, and he's going to testify without having the defendant's agreement. [00:27:35] Speaker 00: And that's what we're asking for that to be clarified, just that bright line rule. [00:27:40] Speaker 04: But again, I'm not so sure the rule is bright, because you say factual innocence. [00:27:46] Speaker 04: Yeah. [00:27:46] Speaker 04: But factual innocence has to be judged against a standard. [00:27:51] Speaker 04: And if the standard is here are the [00:27:55] Speaker 04: elements including the elements of the offense and then elements of a defense that the jury needs to get through to enter a guilty verdict and the facts are not being conceded that clear the path all the way to the guilty verdict because the defense isn't being conceded. [00:28:17] Speaker 04: How is that a concession of factual guilt? [00:28:21] Speaker 00: I'm just talking about the elements of the offense, which is true for insanity. [00:28:24] Speaker 04: You're assuming that you want to say that a defense doesn't count. [00:28:32] Speaker 04: So in other words, if the approach of the lawyer is that I think this should be defended on an affirmative defense, that that's subject to McCoy. [00:28:43] Speaker 04: That would be your bright line rule. [00:28:45] Speaker 04: Is that what I'm saying? [00:28:46] Speaker 04: All defenses, all affirmative defenses, are subject to McCoy and not Strickland. [00:28:50] Speaker 00: Well, yes. [00:28:52] Speaker 00: I mean, I can't speak. [00:28:54] Speaker 00: I haven't looked at every affirmative defense, but I think in a case where you're admitting all of the elements, yes, then I think that's the bright line rule. [00:29:05] Speaker 00: That that was true also in the Reed case. [00:29:08] Speaker 04: His point is that insanity is unique in that it actually has a different judgment. [00:29:17] Speaker 04: Not guilty by reason of insanity is not the same as not guilty, but duress and entrapment and other defenses lead to just not guilty. [00:29:29] Speaker 00: I think they're all, it's not guilty by reason of entrapment. [00:29:33] Speaker 00: It's not guilty. [00:29:34] Speaker 00: It's that the client's conduct is excused by this affirmative defense, where you're admitting all of the elements. [00:29:42] Speaker 00: At least in this standard case, you're admitting all of the elements of the offense and then saying, but that conduct is excused. [00:29:50] Speaker 00: And that's the difference between factual and legal innocence, that you would be saying, [00:29:56] Speaker 00: My client is factually guilty of the crime, but legally not guilty because of entrapment or insanity or duress or whatever other defense there might be. [00:30:10] Speaker 00: OK. [00:30:11] Speaker 04: All right. [00:30:12] Speaker 04: Thank you. [00:30:12] Speaker 00: Thank you. [00:30:12] Speaker 04: We're taking you over your time, but we appreciate both counsel's very helpful arguments and the matter of US versus Molina is submitted for decision.