[00:00:03] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:05] Speaker 01:
Margaret Farron, I'm from the Federal Public Defender's Office, appearing today on behalf of the defendant and appellant, Christopher Brunel.

[00:00:13] Speaker 01:
And I would like to reserve three minutes of my time for rebuttal, please.

[00:00:15] Speaker 01:
I'll be sure to watch my time.

[00:00:18] Speaker 01:
This Court should vacate Mr. Brunel's sentence and remand for further proceedings for two reasons.

[00:00:24] Speaker 01:
First, the district court abused its discretion in denying Mr. Bernal's motion to substitute appointed counsel in the place of his retained counsel.

[00:00:33] Speaker 01:
And second, the evidence at sentencing was insufficient to include the many alleged victims in relevant conduct, which dramatically affected Mr. Bernal's guideline calculation, or to prove the loss amount or the disputed enhancements.

[00:00:48] Speaker 01:
I'd like to start by discussing the district court's denial of Mr. Bernal's request to substitute counsel.

[00:00:54] Speaker 01:
There are two legal standards that have been sort of brought to bear in the briefing of this case that are relevant to that inquiry.

[00:01:00] Speaker 01:
But the correct one is the Rivera-Corona standard.

[00:01:05] Speaker 01:
Rivera-Corona is the case in which this court was very specific and intentional about saying

[00:01:11] Speaker 01:
When a party has a retained counsel and seeks to discharge that counsel, we're going to clarify and announce the standard that applies in that situation.

[00:01:19] Speaker 01:
And because this situation implicates a choice of counsel right, not just the right to adequate counsel, then that must be granted unless denial is not just found to be warranted but compelled by the purposes inherent in.

[00:01:34] Speaker 02:
You know, Rivera Corona also says conflict between the defendant and his attorney

[00:01:41] Speaker 02:
enters the analysis only if the court is required to balance the defendant's reason for requesting substitution against the scheduling demands of the court.

[00:01:52] Speaker 02:
Given that this was done at the very last minute vis-a-vis the sentencing, why isn't that factor now back in even under that standard?

[00:02:04] Speaker 02:
And so we really sort of end up in the same place whether or not the last minute nature of this was justified.

[00:02:11] Speaker 01:
I understand, Your Honor, and I think that's kind of why I addressed all of these factors in the briefing.

[00:02:17] Speaker 01:
I don't deny that it comes in because you're looking at what's fair and just and what's compelled.

[00:02:21] Speaker 01:
But I do think that the Rivera-Corona standard puts the onus on the government.

[00:02:25] Speaker 01:
I think it's more favorable to the defendant.

[00:02:26] Speaker 01:
I think it has to not just be appropriate, but compelled.

[00:02:29] Speaker 02:
Well, but so, I mean, the other question I have is there's really two components of this, because actually when

[00:02:35] Speaker 02:
defense counsels stood up there were two requests the first is to withdraw the plea and actually that's the first thing that he says and then that he wants to get rid of me and have the public defender and the judge addresses those separately and says you know we're not withdrawing the plea today that's that's not happening we went through the colloquy that's not justified and then he addresses

[00:03:04] Speaker 02:
With that off the table, there's not gonna be a withdrawal of the plea, then it's a sentencing.

[00:03:09] Speaker 02:
And then at that point, the interference with the court's schedule is at its maximum, because the only thing left is a sentencing.

[00:03:15] Speaker 02:
They're there for the sentencing, and so why isn't this just governed by the conflict language that I just read, and this is abuse of discretion, and so I don't really see the compelled comes into this when you frame it that way.

[00:03:31] Speaker 01:
I'm sorry, to clarify Your Honor's question, is Your Honor asking whether it's an abuse of discretion standard that's being applied now?

[00:03:38] Speaker 01:
Correct.

[00:03:39] Speaker 01:
OK.

[00:03:39] Speaker 01:
So I don't know that Brown or Rivera-Corona addresses whether the effect of this test is to bring abuse of discretion back into the inquiry at the end.

[00:03:48] Speaker 01:
But I do think that one thing that they, and I don't know that the case law addresses that specifically, but I do know that what they say is that under this test, because there is this right to discharge counsel for any reason,

[00:03:59] Speaker 01:
There needs to be at least a determination of why this request was made so late.

[00:04:04] Speaker 01:
There needs to be a fulsome inquiry, an informed basis for decision as to why this request was late and what the nature of the conflict was.

[00:04:12] Speaker 01:
That has to happen.

[00:04:13] Speaker 01:
And if your honors don't mind, I actually would like to kind of just go through this, because I think this gets to the heart of the inquiry.

[00:04:19] Speaker 01:
What happened?

[00:04:20] Speaker 01:
What does the record show us?

[00:04:22] Speaker 01:
There's a lot we don't know, because the district court kind of initially said, I don't want to get into the nitty gritty of this and cut off its inquiry.

[00:04:27] Speaker 01:
But this is what we do know.

[00:04:29] Speaker 01:
We know that Brunel's complaint was that he was forced and deceived into pleading guilty.

[00:04:36] Speaker 01:
That's what he said.

[00:04:38] Speaker 01:
Council said the word forced also.

[00:04:41] Speaker 01:
That's the essence of it.

[00:04:43] Speaker 01:
We also know that what he said his understanding was of his plea was that he was only pleading guilty to the $557,000 in the indictment, not a greater amount.

[00:04:55] Speaker 01:
I understand that the government is saying that the plea colloquy disproves that, but when you really look back at the plea colloquy, what it really shows is that actually counsel, coming up to the eve of trial, specifically negotiated with the prosecution for a much narrower factual basis, which was actually what Brunel pled to, and he was told that his plea- In the plea colloquy, Judge Fitzgerald specifically warned him

[00:05:18] Speaker 02:
that there might be other victims and that he could take that into account at sentence.

[00:05:24] Speaker 01:
I don't read it that way, Your Honor.

[00:05:25] Speaker 01:
I don't think it was ever said there could be other victims.

[00:05:27] Speaker 01:
This is what was said at ER 116.

[00:05:29] Speaker 01:
It says, let's deal with the wire fraud charges first.

[00:05:32] Speaker 01:
Mr. Bonnell, what we've just heard that the prosecutor had just read, in a sense, is part of what is in the indictment.

[00:05:40] Speaker 01:
by pleading guilty to the extent that there is allegations here of things that you did that were not included in that factual basis, then at sentencing you could potentially, I don't know if you'll want to or not, you could dispute them.

[00:05:51] Speaker 01:
Now if I were a criminal defendant hearing this- It's the next paragraph.

[00:05:54] Speaker 01:
Okay, but let's listen, let's look at that then.

[00:05:56] Speaker 01:
And for instance, the counts deal with just one victim in particular.

[00:05:59] Speaker 01:
Or perhaps, as to other victims, there might be, or I guess a couple of victims.

[00:06:03] Speaker 01:
There were, in fact, JT and the trust.

[00:06:05] Speaker 01:
There were JT and the trust.

[00:06:07] Speaker 01:
That's in the counts he pled to.

[00:06:09] Speaker 01:
But in any event, the victims that were listed in these counts as opposed to others.

[00:06:14] Speaker 01:
But what does this?

[00:06:15] Speaker 02:
Opposed to others who were not listed in the counts.

[00:06:16] Speaker 01:
But he doesn't say other victims who are not listed in the counts could come in at sentencing.

[00:06:20] Speaker 01:
I frankly, honestly, Your Honor, respectfully to the district court judge, I don't know what this means.

[00:06:24] Speaker 01:
If you just syntactically listen to what is said here as what the words that are spoken.

[00:06:27] Speaker 01:
For instance, the counts deal with just one victim in particular, or perhaps as to other victims there might be, or I guess a couple of victims.

[00:06:34] Speaker 01:
But any event, the victims that were listed in these counts as opposed to others.

[00:06:37] Speaker 01:
What does that mean?

[00:06:38] Speaker 01:
I sure don't know.

[00:06:39] Speaker 01:
If I were a criminal defendant sitting there, I'd think, I can challenge it if they try to bring in victims as opposed to who I've pled to.

[00:06:45] Speaker 01:
That's a very reasonable way to interpret that statement, which doesn't, respectfully, grammatically make sense.

[00:06:50] Speaker 02:
But he also revisits the other victims thing a couple of pages later.

[00:06:54] Speaker 02:
And he said, when he gets into the amount of,

[00:06:59] Speaker 02:
of penalties.

[00:07:01] Speaker 02:
He said, that would certainly be the victims who are mentioned in these 13 counts.

[00:07:05] Speaker 02:
It might conceivably, I'm on page 28 of the plea transcript, ER 123.

[00:07:11] Speaker 02:
That would certainly be the victims who are mentioned in these 13 counts.

[00:07:15] Speaker 02:
It might conceivably be other victims.

[00:07:18] Speaker 02:
If I determine that they exist, and it could, it will be in whatever amount is determined.

[00:07:24] Speaker 02:
I mean, we just heard a list from the indictment, but whatever the amount is that is determined by the evidence, I will impose it at the sentencing.

[00:07:31] Speaker 02:
And even if you and your lawyer have guessed wrong, where the amount is greater than you think it is right now, that is going to be the amount of restitution.

[00:07:40] Speaker 02:
Do you understand that?

[00:07:41] Speaker 01:
Yes, Your Honor.

[00:07:42] Speaker 01:
Your honor, this is restitution, not loss amount.

[00:07:44] Speaker 01:
This paragraph at ER 123, page 28, line 20, Mr. Burnell, in addition to the penalties here, a fine or prison time or supervised release or the payment of $100 per count, the law also imposes, and it's mandatory, that you make restitution.

[00:07:59] Speaker 01:
So now we're in the realm of talking about restitution.

[00:08:01] Speaker 01:
We're not talking about offense level calculation of a custodial sentence.

[00:08:06] Speaker 01:
We're saying, restitution, that would certainly be the victims who are mentioned in these 13 counts.

[00:08:11] Speaker 03:
I guess I'm wondering how the fact that he has admitted the truth of the PSR factors into this Your honor, I'm sorry.

[00:08:22] Speaker 01:
Where did he admit the truth of the PSR?

[00:08:25] Speaker 01:
The council conceded the guidelines calculation, I understand, and I believe actually that that resulted from a breakdown of representation.

[00:08:35] Speaker 01:
I think that was ineffective assistance of council for many different reasons, Your Honor.

[00:08:40] Speaker 01:
I didn't see where he admitted the truth of the PSR.

[00:08:44] Speaker 01:
In fact, quite to the contrary, in the plea colloquy, he said,

[00:08:49] Speaker 01:
where he's again being addressed by the court, the prosecutor reads a narrowed version of the factual basis relating only to investment.

[00:08:57] Speaker 01:
That is the only thing that's talked about in the factual basis there.

[00:09:01] Speaker 03:
So this is at ER 13?

[00:09:02] Speaker 01:
Yes, correct.

[00:09:03] Speaker 03:
Are there factual errors in the report?

[00:09:05] Speaker 03:
We'll get to the guidelines in a moment.

[00:09:06] Speaker 03:
Are there factual errors in the report?

[00:09:09] Speaker 03:
No factual errors, Your Honor.

[00:09:10] Speaker 01:
I'm sorry.

[00:09:11] Speaker 02:
Can you please?

[00:09:12] Speaker 02:
To ER 13, it's line 21.

[00:09:15] Speaker 01:
ER 13?

[00:09:16] Speaker 01:
Yeah.

[00:09:18] Speaker 01:
OK.

[00:09:22] Speaker 01:
All right.

[00:09:23] Speaker 01:
Are there any factual errors in the report that you want to bring to my attention?

[00:09:27] Speaker 01:
No factual errors, Your Honor.

[00:09:28] Speaker 01:
Is that what Your Honors are understanding to be an admission of the facts in the PSR?

[00:09:35] Speaker 03:
That's what it seems like.

[00:09:37] Speaker 03:
And the court is in this, it's not talking about a piece of the PSR.

[00:09:40] Speaker 03:
Did defense receive a copy of the pre-sentence report?

[00:09:43] Speaker 01:
That's what they're talking about.

[00:10:00] Speaker 01:
Whether or not it was true that there were people to whom Mr. Burnell might have made other statements that weren't even fraudulent or had no relation to investment fraud is a separate question from whether those things could be brought to bear on his custodial guidelines calculation.

[00:10:12] Speaker 01:
That is the thing that I think his contention was never made clear to him, because he was told his lawyer negotiated with the prosecutor on the eve of trial for a narrow factual basis.

[00:10:23] Speaker 01:
Judge Fitzgerald said, and I assume this was the product of negotiation with the government.

[00:10:27] Speaker 01:
He says, yes, it was.

[00:10:30] Speaker 01:
He says I'm sorry It was the product of negotiation with the government his counsel I can imagine a scenario it wasn't developed because there wasn't an adequate inquiry But where it's coming up to the eve of trial counsels nervous because he's not prepared for trial He says you need to plead guilty to this I promise you you're only pleading guilty to a narrow factual basis only these two victims in the indictment Don't worry, and he never tells him

[00:10:53] Speaker 01:
hey, all the other people in the indictment who I'm pleading out of this factual basis can just come right back in at sentencing and submit a claim for restitution no matter how unrelated these statements were that you made to them or whether it was even actually fraud.

[00:11:06] Speaker 01:
I don't think that was ever said to him.

[00:11:08] Speaker 00:
Were there other conflicts between Brunel and his counsel aside from understanding the ramifications of the guilty plea?

[00:11:18] Speaker 01:
Your Honor, I actually think glad you brought that up, because I want to point out this was not the first time that Mr. Brunel tried to discharge this counsel.

[00:11:26] Speaker 01:
He initially was indicted in December of 2017, and he had a lawyer that was brought on to represent him for a limited purpose, Jeffrey Danes.

[00:11:33] Speaker 01:
There's a declaration from that counsel at FER 8 to 9.

[00:11:36] Speaker 01:
He says, I was retained for a limited purpose justice system and trying to get released and to find really a permanent counsel.

[00:11:42] Speaker 01:
this new counsel substituted in in August 2019.

[00:11:45] Speaker 01:
That's S-E-R 18.

[00:11:47] Speaker 01:
And then a couple of months later, there was a pre-plea conference where Bernal said, I actually would like to substitute out this person.

[00:11:53] Speaker 01:
I'd like to find a new counsel.

[00:11:55] Speaker 01:
And at the end of that conference, he asks Judge Fitzgerald, can I talk to you privately?

[00:12:00] Speaker 01:
He wants to talk to him about that counsel.

[00:12:02] Speaker 01:
And Judge Fitzgerald says, no, you cannot.

[00:12:05] Speaker 01:
You have a lawyer.

[00:12:06] Speaker 01:
This is ER 217.

[00:12:07] Speaker 01:
Sorry, ER?

[00:12:09] Speaker 01:
ER 217.

[00:12:10] Speaker 01:
217.

[00:12:12] Speaker 01:
The defendant is going back to the prior page, I guess.

[00:12:18] Speaker 01:
So another thing that occurs repeatedly in these pre-trial conferences is that Judge Fitzgerald repeatedly says, you can switch your counsel any time you like.

[00:12:25] Speaker 01:
You just can't get a continuance.

[00:12:27] Speaker 01:
So he says that to him again here at ER 216.

[00:12:29] Speaker 01:
You aren't going to get to continue to get delays of the trial.

[00:12:32] Speaker 01:
Pick a date in April.

[00:12:33] Speaker 01:
Write it up.

[00:12:33] Speaker 01:
Submit it as a stipulation for excludable time.

[00:12:35] Speaker 01:
I'll look at it.

[00:12:36] Speaker 01:
But when you're out looking for a lawyer, let him or her know that she's going to have to be ready to try

[00:12:40] Speaker 01:
case on the date in April.

[00:12:42] Speaker 01:
Now, this is before the COVID pandemic came.

[00:12:44] Speaker 01:
But then the defendant says, I understand, Your Honor.

[00:12:46] Speaker 01:
I was wondering if I could address the court privately.

[00:12:48] Speaker 01:
And the court says, no.

[00:12:50] Speaker 01:
You've got a lawyer, and I really don't see any need for that.

[00:12:52] Speaker 03:
Well, Ms.

[00:12:53] Speaker 03:
Farron, I think we've got, there's statements in the record about a conflict.

[00:13:00] Speaker 03:
And this is back on the substitution piece.

[00:13:03] Speaker 03:
I guess to follow up on Judge Collins' question, here we've got a point under Rivera-Corona where the fair administration of justice is at its maximum in terms of just getting that sentencing done.

[00:13:20] Speaker 03:
It's hard to imagine a higher point where a district court would have interest in wrapping things up and completing the sentencing and moving it on.

[00:13:32] Speaker 01:
Compared to a trial, Your Honor, I think that might actually be more because then you'd have witnesses, you'd have a whole trial.

[00:13:38] Speaker 03:
We're working with the claim that's before us here, which is about a request for substitution

[00:13:44] Speaker 03:
not on the eve of sentencing, at sentencing.

[00:13:48] Speaker 03:
So under Rivera-Corona, which does not itself specify a separate three-step process of timeliness and inquiry and balancing, which that might be a good idea, and we've done that in some of our cases, but where there couldn't be any greater interest in the district courts moving through the process,

[00:14:10] Speaker 03:
how great a level of conflict would be necessary to countervail that under Rivera Corona and where can we find that in the record?

[00:14:18] Speaker 01:
Well I think certainly if there was a misrepresentation made to him about his plea and he wasn't aware of that, that would be a very considerable

[00:14:26] Speaker 01:
level of conflict, which at very minimum would need to be explored.

[00:14:31] Speaker 01:
I mean, it's never just, it's never, even under the regular three-factor test, just delay.

[00:14:37] Speaker 01:
Damore says, even if it's on the day of trial, you can never just say delay, done.

[00:14:42] Speaker 01:
you don't get to substitute, you have to look at what the conflict was.

[00:14:45] Speaker 01:
And here, what was alleged was actually a very serious conflict of deceit and being forced into trial.

[00:14:50] Speaker 01:
Now, why did, and also, why did he wait till the... Just a generic claim of forced.

[00:14:55] Speaker 02:
He had specific complaints, which is, I didn't think the amount could be 7.5 million.

[00:15:04] Speaker 02:
I just didn't think that that could come back.

[00:15:07] Speaker 02:
That was his primary objection.

[00:15:13] Speaker 01:
But why didn't you think that, Your Honor?

[00:15:14] Speaker 01:
I mean, I think that what we have here is a case where counsel worked out a deal

[00:15:20] Speaker 02:
Judge Fitzgerald knew that he had told him that the restitution could be higher, that other victims could be considered at sentencing, and he knew that he had been told the sentence could go up to 226 years and that he wasn't bound by anything and there were no guarantees as to where in that range that it could be.

[00:15:39] Speaker 02:
Respectfully, Your Honor.

[00:15:40] Speaker 02:
standard stuff for plea colloquy to prevent people from coming in at sentencing or coming in later and saying, well, I wasn't told that this could happen.

[00:15:49] Speaker 02:
Well, the court told you that that could happen.

[00:15:51] Speaker 01:
What the court said when he mentioned the 226 years, he said, this is not to say you'll get anything even close to that.

[00:15:55] Speaker 01:
I just have to tell you this.

[00:15:57] Speaker 01:
That was not really a real thing that was brought to bear at the change of plea hearing.

[00:16:01] Speaker 01:
And the other thing is, regardless of the stat max, which the judge told him he probably would never get, he did not say he probably would never get.

[00:16:08] Speaker 01:
Well, let's look at what he said.

[00:16:10] Speaker 01:
He might not get that.

[00:16:12] Speaker 01:
Let's look at what he said here.

[00:16:19] Speaker 01:
ER-119.

[00:16:20] Speaker 01:
Mr. Bonnell, it's not to say that you would receive that, a sentence like that, or anything close to that.

[00:16:27] Speaker 01:
That's at 21 to 24.

[00:16:30] Speaker 02:
But that's not a statement of probability.

[00:16:32] Speaker 02:
It's just to say that it's a possibility that that won't be.

[00:16:36] Speaker 01:
But I think getting back to what the conflict was, if it's Mr. Brunel, first of all, we don't know what the full extent of the conflict was because the court said, I'm not going to get into the nitty gritty of that.

[00:16:46] Speaker 01:
I'm just not going to ask about it.

[00:16:48] Speaker 01:
We don't know.

[00:16:49] Speaker 01:
Maybe there was an argument where there were threats and epithets thrown around.

[00:16:52] Speaker 01:
It could have happened.

[00:16:53] Speaker 01:
Maybe somebody felt physically threatened.

[00:16:55] Speaker 01:
Maybe there was a misrepresentation about how the guidelines were calculated.

[00:16:58] Speaker 01:
We just don't have that record.

[00:17:00] Speaker 01:
We don't have that information.

[00:17:01] Speaker 01:
But in most, these allegations leave room for a very serious scenario that the district court consciously and deliberately decided not to investigate and not to inform itself of.

[00:17:10] Speaker 03:
Does Rivera-Corona require an inquiry?

[00:17:12] Speaker 01:
Yes, it does, Your Honor.

[00:17:14] Speaker 01:
Rivera-Corona does require an inquiry.

[00:17:15] Speaker 01:
In fact, Brown, which is the case that applied the Rivera-Corona standard, said in that case, the court actually cited delay and untimeliness as the reason for denying substitution.

[00:17:25] Speaker 01:
But Brown said, you know, when the onus is sort of on the government and the court to really show that this is compelled, we need to actually look behind, is there really going to be a delay?

[00:17:36] Speaker 01:
How much of a delay?

[00:17:36] Speaker 01:
The court has to at least consider how much and why this request was made late.

[00:17:41] Speaker 03:
But that's the kind of inquiry.

[00:17:44] Speaker 03:
I guess an inquiry into the conflict, because the district court, I think, well knows the delay.

[00:17:52] Speaker 03:
I think that was at the front of the district court's mind in this.

[00:17:54] Speaker 03:
So if the only inquiry required by our cases under the Rivera-Corona standard is about the likely delay, it's not clear why that requires a colloquy with the defendant.

[00:18:05] Speaker 01:
I think to the extent, Your Honors, you're opening up the inquiry because I think what Your Honors have said in this argument is that if there's delay, then there's going to be a more fulsome look at the justness and if that delay is warranted.

[00:18:17] Speaker 01:
I think that then does require a look into how serious of a conflict this is.

[00:18:21] Speaker 01:
And at minimum, why was there a delay?

[00:18:24] Speaker 01:
I want to just point out, we don't know why Mr. Burnell waited until the eve of sentencing or until the day of sentencing to raise this, but he said he had been trying to withdraw.

[00:18:31] Speaker 01:
He said he'd been trying to bring this to the court's attention earlier.

[00:18:35] Speaker 01:
We don't know why.

[00:18:35] Speaker 01:
But he'd been told by the court back in 2019 that he can't address the court outside of counsel.

[00:18:41] Speaker 01:
He asked to talk to the court individually.

[00:18:43] Speaker 01:
And the court said no.

[00:18:44] Speaker 01:
So it's possible, had the district court inquired, we might know.

[00:18:47] Speaker 01:
But maybe he asked his lawyer, can you file this motion, please?

[00:18:50] Speaker 01:
Because I now see this PSR.

[00:18:52] Speaker 01:
It was disclosed on August 9.

[00:18:54] Speaker 01:
On August 10, the counsel moved to continue.

[00:18:56] Speaker 01:
For all we know, Bernal said, whoa, wait a second.

[00:19:00] Speaker 01:
I had no idea that all of these people could be brought in.

[00:19:02] Speaker 01:
You never told me this.

[00:19:03] Speaker 01:
You told me that I was only pleading guilty to this narrow set.

[00:19:06] Speaker 01:
Council files a motion to continue on August 10.

[00:19:08] Speaker 01:
And maybe Bernal's saying, hey, please file a motion to withdraw in the court.

[00:19:12] Speaker 01:
And maybe council didn't do it.

[00:19:14] Speaker 01:
That's the problem.

[00:19:14] Speaker 01:
We just don't know that.

[00:19:16] Speaker 01:
Because that inquiry was never undertaken.

[00:19:18] Speaker 01:
And yes, I think Revere and Corona and Brown are very clear that

[00:19:23] Speaker 01:
The court needs to apprise itself, inform itself of why there was this delay.

[00:19:28] Speaker 01:
It needs to learn about the conflict too, but at the absolute minimum, why was there a delay?

[00:19:34] Speaker 01:
Why did the person wait so long?

[00:19:35] Speaker 01:
We have Mr. Brunel saying he was trying.

[00:19:37] Speaker 01:
We have Mr. Brunel saying his counsel lied to him.

[00:19:40] Speaker 01:
And we have counsel himself saying he knew he needed to do certain things for sentencing that he just didn't do.

[00:19:45] Speaker 01:
Even in that continuance request, he says,

[00:19:47] Speaker 01:
There have been things brought up by the prosecution or in the PSR, the August 9th amended PSR, that I really need to address and I need a continuance for that.

[00:19:55] Speaker 01:
Well, then he gets his sentencing and said, I just didn't do it.

[00:19:58] Speaker 01:
What happened between August 9th and August 30th when he said, I just didn't do it?

[00:20:02] Speaker 01:
That's kind of a black hole.

[00:20:03] Speaker 01:
We don't know why.

[00:20:04] Speaker 01:
But something very serious happened in that time period that the district court made a decision not to inform itself of.

[00:20:09] Speaker 01:
And I think that's a big problem.

[00:20:11] Speaker 01:
And under Rivera-Crona and Brown, that's something that at very minimum warrants a remand for a renewed hearing.

[00:20:17] Speaker 02:
Okay.

[00:20:18] Speaker 02:
Can I just, before you sit down, I'm going to give you three minutes for your bottle because we've asked you a lot of questions and taking you over your time.

[00:20:24] Speaker 02:
Thank you.

[00:20:24] Speaker 02:
I appreciate that.

[00:20:25] Speaker 02:
But I had one housekeeping question.

[00:20:26] Speaker 02:
Why are the briefs under seal in this case?

[00:20:30] Speaker 02:
Because it seems like the ceiling was because of this colloquy at the sidebar, but that

[00:20:37] Speaker 02:
seems known to both sides at this point, and so should these briefs remain under seal?

[00:20:42] Speaker 01:
Your Honor, I think the unredacted briefs are under seal.

[00:20:45] Speaker 01:
There is a redacted version that's in the public record.

[00:20:47] Speaker 02:
But why is anything redacted from the public record?

[00:20:50] Speaker 01:
I think it's appropriate that Mr. Brunel preserve, and he does preserve, his attorney-client privilege for purposes of any remand and further proceedings in district court.

[00:20:57] Speaker 02:
He only is waiving this privilege to the extent of- Does the government not know what is in

[00:21:03] Speaker 01:
The purpose isn't to keep it from the government.

[00:21:10] Speaker 01:
The government obviously needs to know that to litigate this issue here.

[00:21:13] Speaker 01:
But I think the purpose is to maintain the attorney-client privilege so that upon any remand or subsequent proceedings, there couldn't be a claim made that there was just a waiver by Mr. Brunel.

[00:21:24] Speaker 02:
But why would the public not get to know?

[00:21:27] Speaker 02:
I don't understand why that's being addressed.

[00:21:31] Speaker 01:
Well, Your Honor, I think this was actually addressed in a motion to the government oppose sealing.

[00:21:36] Speaker 01:
I filed an opposition, and it was actually maintained under seal as it had been.

[00:21:42] Speaker 01:
And I think the reasons for that are explained more fully in my filing.

[00:21:45] Speaker 01:
But I apologize.

[00:21:46] Speaker 01:
I didn't prepare for that particular issue.

[00:21:47] Speaker 02:
I didn't give you any warning that I was going to raise.

[00:21:49] Speaker 02:
But it struck me as a curious fact, and so I just want to ask.

[00:21:53] Speaker 02:
You've pointed me in the direction I should look for that, so I appreciate that.

[00:21:56] Speaker 01:
Thank you, Your Honor.

[00:21:56] Speaker 02:
All right, thank you.

[00:21:57] Speaker 02:
All right, we'll hear now from Mr. Alden.

[00:22:04] Speaker 04:
Good morning, Your Honors.

[00:22:05] Speaker 04:
May it please the Court, Bram Alden on behalf of the United States.

[00:22:09] Speaker 04:
To answer Judge Collins's housekeeping question before I begin, the government did indeed oppose the sealing of the briefs.

[00:22:16] Speaker 04:
The defendant moved forward on the basis of attorney-client privilege.

[00:22:20] Speaker 04:
The government took the position that the attorney-client privilege was waived by bringing that as an issue on appeal, and the government does believe the briefs should be unsealed.

[00:22:29] Speaker 04:
I have seen the sealed portion of the excerpts of record which were provided to me by defense counsel.

[00:22:37] Speaker 04:
As to the substitution of counsel issue, whether this court resolves that under the Rivera-Corona standard or the Seyha-Gonzalez standard that

[00:22:49] Speaker 04:
The defense briefed in the opening brief before the government pointed out the Rivera-Corona standard.

[00:22:55] Speaker 04:
I agree with the court that really the inquiry in this case comes down to untimeliness and delay.

[00:23:02] Speaker 04:
Under the Rivera-Corona standard, that is, of course, the primary consideration.

[00:23:06] Speaker 02:
That's only true if he corrects.

[00:23:10] Speaker 02:
the district judge correctly took off the table the motion to withdraw because if the motion to withdraw was well taken or if it was not properly denied then it's not just a delay case then it's a question of we've got

[00:23:29] Speaker 02:
bigger problem here and maybe another council needed to be brought in to sort it out.

[00:23:35] Speaker 02:
So it seems of central importance the motion to withdraw.

[00:23:41] Speaker 04:
And of course the defense hasn't even claimed on appeal that the motion to withdraw was improperly denied.

[00:23:46] Speaker 02:
It seems embedded in the overall arguments that the colloquy

[00:23:51] Speaker 02:
that was made into the conflict, which was the basis of the motion to withdraw, was inadequate.

[00:23:58] Speaker 02:
So it's a little bit of, you know, Simon says to say that attacking that issue doesn't attack both things that stand on that issue.

[00:24:08] Speaker 04:
It's a fair point.

[00:24:09] Speaker 04:
I think the defense hasn't even asked to withdraw the plea at this point in time.

[00:24:13] Speaker 04:
They've asked for a remand, I believe, for resentencing.

[00:24:17] Speaker 02:
But why was this an adequate colloquy

[00:24:21] Speaker 02:
into a serious matter like a motion to withdraw the plea.

[00:24:30] Speaker 02:
We went through, at some length, the transcript.

[00:24:36] Speaker 02:
And I think council has a point that some of the pieces of this

[00:24:43] Speaker 02:
transcript are not a model of clarity in terms of the reference to other victims.

[00:24:48] Speaker 02:
And so why was there a sufficient basis for him to just basically give the back of the hand to the motion to withdraw?

[00:25:01] Speaker 04:
So the motion to withdraw was obviously itself quite untimely given that the plea had been entered in May of 2022, and this is now August of 2022.

[00:25:11] Speaker 04:
Setting that aside,

[00:25:12] Speaker 02:
But the basis of it is that he did not properly understand what the significance was of uncharged victims.

[00:25:24] Speaker 02:
That was the core of it.

[00:25:28] Speaker 02:
My counsel did not tell me that other victims were going to come back in at sentencing.

[00:25:33] Speaker 02:
And so then in terms of looking at the motion to withdraw, you would say what did the court say about that at the plea hearing, which of course he would recall.

[00:25:44] Speaker 02:
And some of the comments that are in this plea transcript about other victims

[00:25:54] Speaker 02:
are a little confusing.

[00:25:57] Speaker 02:
This is literally verbatim the paragraph.

[00:25:59] Speaker 02:
And for instance, the counts deal with just one victim in particular.

[00:26:04] Speaker 02:
And perhaps as to other victims, there might be, or I guess a couple of victims.

[00:26:09] Speaker 02:
But in any event, the victims that were listed in these counts, as opposed to others, what does that even mean?

[00:26:15] Speaker 04:
So I have a couple of responses to that, Your Honor.

[00:26:17] Speaker 04:
First of all, I do think that there is a level of clarity in there that there are other victims, but I think that's also supported by what the defendant already knew at this stage of the proceeding.

[00:26:27] Speaker 04:
The indictment, which is of course filed in 2017, lists nine victims and a total loss amount

[00:26:34] Speaker 04:
of over $5.6 million.

[00:26:37] Speaker 04:
So the defendant has long been on notice by the time of the change of plea colloquy that this is a case about more than just JT and the trusts.

[00:26:47] Speaker 04:
Thereafter, the defendant gets a PSR, the first PSR in July of 2022.

[00:26:52] Speaker 04:
I believe it's July 11th, 2022.

[00:26:56] Speaker 04:
That PSR lists nearly all of the victims.

[00:26:59] Speaker 04:
I believe 15 out of the final 18 for which restitution was ordered.

[00:27:04] Speaker 04:
And at that point, the defendant is again put on notice that this is a much bigger case than just JT and the trusts.

[00:27:12] Speaker 04:
Accordingly, it behooved the defendant to move to withdraw his plea far earlier than August 30th at the continued portion of a bifurcated sentencing proceeding.

[00:27:22] Speaker 04:
Another point of data that the defendant had by the time of the change of plea colloquy was that in 2020,

[00:27:29] Speaker 04:
there had been some discussion of whether he could substitute a surety in for one of his other sureties, at which point the government actually asked that he be remanded into custody because he was continuing to defraud one of the victims, BR, which was an elderly man who he was continuing to defraud while on pretrial release.

[00:27:49] Speaker 04:
That too put him on notice that this was a much bigger case than just JT and the two trusts.

[00:27:56] Speaker 04:
So I think by the time this change of plea colloquy comes along,

[00:28:01] Speaker 04:
And obviously, your honor pointed out as well that there are comments about restitution and other victims there too.

[00:28:07] Speaker 04:
This defendant knew this was much bigger.

[00:28:09] Speaker 00:
This was a much bigger case.

[00:28:10] Speaker 00:
Why isn't it a problem that it seems like we don't necessarily even get a full statement from Burnell about why he wants to withdraw?

[00:28:20] Speaker 00:
I'm just looking at ER 251 through 253.

[00:28:24] Speaker 00:
It seems like at some point the court kind of cuts him off and says, well, you know, like the court says, the rest, I understand that.

[00:28:31] Speaker 00:
And that's that.

[00:28:33] Speaker 00:
It's unclear that Brunel's even done sort of describing what the conflict is.

[00:28:39] Speaker 04:
granted the court could have allowed him to describe the conflict in more detail, but I think the court realized what was going on here, which was that this was a defendant who at every turn had attempted to avoid prosecution and avoid being held accountable.

[00:28:55] Speaker 03:
But I guess this complex sentencing and his understanding of it is kind of at the core of the rest of the issues in this case.

[00:29:08] Speaker 03:
And here we are where he hasn't said he's read the PSR, but it's been discussed.

[00:29:14] Speaker 03:
that he has a conflict.

[00:29:16] Speaker 03:
There's no inquiry.

[00:29:17] Speaker 03:
I can't find another one of our cases where there's just no open-ended questions.

[00:29:23] Speaker 03:
And his lawyer is saying, for the first time in my career, I have been unable to prepare a sentencing position on this incredibly complicated sentence.

[00:29:33] Speaker 03:
Did the court have any obligation to perform an inquiry?

[00:29:38] Speaker 03:
Can you point us to any of these substitution cases?

[00:29:41] Speaker 03:
where there was no inquiry and in fact the court affirmatively said, I don't want to get into it.

[00:29:47] Speaker 04:
I would say that the best case for the government is Reyes Bosque, which is a case in which this court observed that the district court had conducted a brief ex parte inquiry just as here.

[00:29:59] Speaker 04:
I do not know or don't have in my notes all of the questions that were asked in that case, but I do believe that what happened there is very similar to what happened here, which is that the district court realized quite quickly into the colloquy what was going on.

[00:30:16] Speaker 04:
And what was going on was that this defendant wanted to withdraw his plea rather than actually expressing some serious disagreement or inability to work together with his counsel.

[00:30:28] Speaker 04:
The reason why there was any conflict between this defendant and his counsel was because he wanted to withdraw his plea and avoid sentencing entirely.

[00:30:38] Speaker 04:
It was not any sort of serious breakdown in communication that this court has recognized

[00:30:43] Speaker 03:
What are we to make then of the lawyer's statements that neither of them were really prepared to face sentencing?

[00:30:53] Speaker 03:
I mean, that's what I take to be the fact that he wasn't able to prepare a sentencing position.

[00:31:01] Speaker 04:
So to the extent that that I think actually goes towards ineffective assistance of counsel and whether there needed to be some sort of

[00:31:09] Speaker 04:
Position filed or there was a reason for the fact that the defense counsel had not filed this Well, I think the reason is the conflict and the court doesn't ask anything about it to let us know whether he's properly whether the courts properly exercising its discretion in this From the court's standpoint It was clear that what the defendant wanted to do and what the defendant himself said and what his counsel said was withdraw his plea

[00:31:33] Speaker 04:
And why the defense counsel didn't actually file a sentencing position isn't established by this record except insofar as there was a colloquy about how the defendant wasn't providing information to his lawyer.

[00:31:48] Speaker 04:
That needs to be litigated via 2255 to determine both

[00:31:52] Speaker 04:
What was the defendant doing and why was he doing it?

[00:31:54] Speaker 04:
And what was the lawyer doing and why was he doing it?

[00:31:57] Speaker 03:
I suppose it could, but under our cases, why should we all not be entitled to a little more inquiry in terms of the nature of the conflict given that all we have on the record is that the conflict is related to his inability to develop a position on sentencing?

[00:32:18] Speaker 04:
My read of the record is that the conflict is related also or primarily to the fact that the defendant wanted to withdraw his plea.

[00:32:26] Speaker 04:
And that is, I think, what the district court quickly came to determine when it said, and I am not withdrawing, I am not allowing withdrawal of the plea, which is why we're going to go forward with sentencing today.

[00:32:37] Speaker 03:
What was Burnell allowed to say about the conflict issue?

[00:32:42] Speaker 03:
Where would you point to on the record where we have the minimal inquiry that may be required?

[00:32:49] Speaker 04:
So at 3ER-251, that is where the defendant is speaking to the court about telling me to do the open plea.

[00:33:01] Speaker 04:
And I was trying to shield his ex-wife and his daughter.

[00:33:04] Speaker 04:
I never once knew at the time that I was pleading to $7.5 million, and I was looking to 15 to 20 years.

[00:33:11] Speaker 03:
That's about the plea.

[00:33:12] Speaker 03:
I think the concern is that when the substitution request comes in, he cuts him off.

[00:33:18] Speaker 03:
Does he not?

[00:33:24] Speaker 04:
My understanding is that was about the substitution request because that was the point of the sidebar in the first place.

[00:33:32] Speaker 04:
And the reason why it immediately shifted to a discussion of withdrawing the plea was because the substitution request was premised on his desire not to go forward with sentencing because he wanted to withdraw.

[00:33:45] Speaker 04:
He continued on ER 252, I've been trying to withdraw.

[00:33:48] Speaker 04:
I didn't want to wait until the last minute.

[00:33:53] Speaker 04:
That is consistent with what his counsel then said that how this works and then the defendant chimed in again immediately after his counsel without the court interceding and said, and I have been trying to do the withdrawal of the plea again.

[00:34:07] Speaker 04:
Given that record, Reyes Bosque pointed out that the inquiry needs to determine

[00:34:16] Speaker 04:
what is going on.

[00:34:17] Speaker 04:
And the district court quickly could hear, which was that this defendant simply did not want to be sentenced.

[00:34:24] Speaker 04:
And going back to some of the comments that both Judge Collins and Judge Johnstone, you made earlier, this is at the maximum.

[00:34:33] Speaker 04:
I think you both used that word in terms of when the delay and untimeliness is really problematic.

[00:34:39] Speaker 04:
And I would say that even beyond just being during the sentencing,

[00:34:44] Speaker 04:
This is at a bifurcated sentencing proceeding, which, at the defendant's request, his portion of the sentencing has already been continued by 15 days.

[00:34:54] Speaker 04:
The victims are actually seriously prejudiced by the way this proceeding has gone down, because they had to allocate 15 days earlier, at which point, if there is going to be further delay.

[00:35:07] Speaker 02:
But once he denied the motion to withdraw and then

[00:35:14] Speaker 02:
once he denied the motion to substitute counsel with the public defender.

[00:35:20] Speaker 02:
He knew at that point what had happened and that the lawyer had essentially gotten jammed by this process and had not been able to do even the kind of minimum level of preparation.

[00:35:34] Speaker 02:
Wasn't it incumbent on the court to at least put it over for a couple of weeks so that he could file something?

[00:35:41] Speaker 02:
Now that he knew that the reason why he didn't get a sentencing position, which the lawyer said he had never done before in his career, not file one, was because of this mess that had just developed.

[00:35:54] Speaker 02:
I mean, it seems highly prejudiced to just plow through with kind of winging it.

[00:35:59] Speaker 04:
Well, that really requires development on a 2255 because we don't know what the defendant was telling his lawyer about why he didn't file a sentencing petition.

[00:36:09] Speaker 04:
He very well could have said, please do not file anything because I do not want to be sentenced.

[00:36:16] Speaker 04:
We don't know.

[00:36:17] Speaker 04:
And my opposing counsel offers a lot of speculation, too, about conversations that could have happened.

[00:36:22] Speaker 02:
Was there a request at that point in any portion of the sentencing hearing

[00:36:29] Speaker 02:
to put it over for a further period of time?

[00:36:35] Speaker 04:
I don't believe so, because what had happened at the colloquy between the district court and the defense counsel and the defendant outside the government's presence was that the court had said multiple times, we are going to proceed with the sentencing.

[00:36:47] Speaker 04:
I'm going to go forward with the sentencing today, and made very clear that there could not be further delay.

[00:36:53] Speaker 04:
The government had already opposed this bifurcated model where

[00:36:57] Speaker 04:
part would be continued because the defendant had filed an ex parte application five days before the August 15th sentencing, an application on August 10th asking for a two week continuance, which the district court had already granted by bifurcating the sentencing proceedings so that the victim spoke on August 15th and the defendant was then sentenced on August 30th.

[00:37:22] Speaker 04:
The other thing that I would point out, though, in respect to what the defense counsel might have filed, and may I finish that answer?

[00:37:34] Speaker 04:
We don't know the potential prejudice from any further analysis or inquiry.

[00:37:41] Speaker 04:
In fact, I would submit that the more that was talked about and discovered about about these victims, the greater the loss amount seemed to get.

[00:37:50] Speaker 04:
And the defense in their opening brief pointed out three instances

[00:37:55] Speaker 04:
where there was a discrepancy between what a victim claimed they had suffered and what the PSR actually awarded them.

[00:38:02] Speaker 04:
In all three of those instances, the victims claimed higher loss amounts.

[00:38:06] Speaker 04:
And I had found multiple other victims.

[00:38:09] Speaker 04:
I don't want to go through them given the time now, but multiple other victims who claimed more loss than they were awarded.

[00:38:15] Speaker 02:
You're kind of heading towards the question that I had, which is,

[00:38:21] Speaker 02:
The victims for whom restitution is ordered, were there any people on that restitution list who were not included in the PSR's description of the victims for purposes of calculating the guidelines?

[00:38:40] Speaker 04:
No.

[00:38:41] Speaker 04:
In the initial PSR, I believe there were 15 victims, and the government then identified three more.

[00:38:47] Speaker 04:
All 18 of those victims were included both in the restitution calculation and the loss amount calculation.

[00:38:54] Speaker 02:
So all the victims who were included in calculating amount of loss for purposes of the guidelines, my question is actually the opposite.

[00:39:04] Speaker 02:
I just want to make sure that everyone, that I understand that everyone who

[00:39:09] Speaker 02:
was ordered to get restitution had already been included in calculating the loss under the guidelines.

[00:39:17] Speaker 02:
Is that correct?

[00:39:18] Speaker 04:
That is correct.

[00:39:19] Speaker 04:
The loss amount and restitution amounts, I believe, were actually the same in terms of $7.5 million or so.

[00:39:25] Speaker 02:
And the persons matched.

[00:39:27] Speaker 02:
So everyone on the restitution list was on the earlier list.

[00:39:30] Speaker 04:
The only other thing I would point out about that, though, is that JT, the victim of nine of the 11 wire fraud counts, was, according to the indictment,

[00:39:39] Speaker 04:
a loss or restitution amount of $557,000, whereas his actual restitution award was only $62,500, and the actual amount of loss for which he was included in the loss calculation was only $62,500.

[00:39:55] Speaker 04:
So again, that's another piece of data indicating that the more anything was explored in this respect, the more the loss amount was gonna go up.

[00:40:04] Speaker 04:
There is therefore no plain error and no basis for this court to reverse.

[00:40:09] Speaker 02:
Thank you, Your Honors.

[00:40:16] Speaker 01:
I appreciate Your Honors giving me additional time.

[00:40:19] Speaker 01:
I wanted to start out by addressing the loss amount here.

[00:40:21] Speaker 01:
PSR 273 is where the victims are listed who are included for restitution and loss.

[00:40:29] Speaker 01:
If you look at what substantiation was provided for any of these numbers, which add up to $7.5 million, the only amount that has any amount of substantiation in the form of a victim statement is $2.8 million.

[00:40:45] Speaker 01:
That's from the victims who actually submitted statements that provided some amount.

[00:40:50] Speaker 01:
Those were SB, ME, DS, GT, KS, HF,

[00:40:56] Speaker 01:
MR, LS, and KL.

[00:40:57] Speaker 01:
If you add those up, just the ones that had actual statements with numbers, you only get to $2.8 million.

[00:41:04] Speaker 01:
The government says that the more you look into their statements, the greater the loss grows, but that's not correct.

[00:41:10] Speaker 01:
The probation department looked into, I suppose, presumably looked into these victims' claims about how much they lost and found out that they lost less.

[00:41:17] Speaker 01:
Even the ones who actually gave numbers lost less than they claim.

[00:41:20] Speaker 01:
But then the remainder of it, to get from 2.8 million up to 7.5 million, there's no substantiation at all.

[00:41:27] Speaker 01:
We don't have any victim statements from many of these victims.

[00:41:29] Speaker 01:
There were seven who provided no victim impact statement at all.

[00:41:33] Speaker 01:
There were two who provided a victim impact statement that just had no amount.

[00:41:37] Speaker 01:
We don't know how the probation office calculated this amount.

[00:41:41] Speaker 01:
which is profoundly large and way beyond what Mr. Burnell was told about at sentencing.

[00:41:45] Speaker 03:
Well, what was the district court to do given, at least through counsel, Mr. Burnell's concession that the facts were accurate, that there were no errors?

[00:41:54] Speaker 01:
Well, I don't know that we can take it in that way.

[00:41:59] Speaker 01:
Because the PSR contained no facts about this.

[00:42:03] Speaker 01:
There were no facts.

[00:42:04] Speaker 01:
This is just a conclusion as to loss.

[00:42:07] Speaker 01:
There were no facts at all to talk about as to who is even, for example, EB.

[00:42:11] Speaker 01:
I don't know who that person is.

[00:42:13] Speaker 01:
That person didn't submit any statement, and there was no description in the PSR or by probation of how that person sustained a loss.

[00:42:19] Speaker 01:
And then the idea of relevant conduct.

[00:42:22] Speaker 01:
It's real offense sentencing.

[00:42:23] Speaker 01:
That's the idea of relevant conduct.

[00:42:25] Speaker 01:
What was the real offense?

[00:42:26] Speaker 01:
Well, as Mr. Burnell pled to in the narrowed version of his factual basis, it was investment fraud.

[00:42:31] Speaker 01:
But now, suddenly, we have all comers at sentencing.

[00:42:34] Speaker 01:
Anyone who feels that Mr. Burnell owes them any amount of money because he

[00:42:37] Speaker 01:
asked them for too much money for his household expenses or he said he had a child custody battle over a period of eight years can suddenly just come in and I guess apparently submit a paper to the probation department saying he owes me this much and they get into the PSR.

[00:42:50] Speaker 01:
I cannot imagine that this is okay.

[00:42:53] Speaker 01:
I know that in Lucas this court recently held that

[00:42:55] Speaker 01:
clear and convincing evidence is not a standard that applies.

[00:42:58] Speaker 01:
But as a trade-off for that, there's a real standard that needs to be met.

[00:43:02] Speaker 01:
It's actually a preponderance of the evidence by reliable evidence.

[00:43:05] Speaker 01:
There needs to be at least some evidence to go from $557,000 up to $7 million, which is really what happened here, against the backdrop of a plea colloquy that was profoundly confusing and where Mr. Menell specifically bargained for not pleading to the whole indictment.

[00:43:25] Speaker 01:
The other thing, I'm sorry I'm going on, I apologize to your honors, but the court says he had notice but he didn't.

[00:43:31] Speaker 01:
He didn't have notice from the indictment because he specifically bargained at his change of plea hearing for a lesser amount of conduct and we don't know when he received the PSR.

[00:43:39] Speaker 01:
That's never shown in the record.

[00:43:42] Speaker 01:
It was, the amended PSR was provided on August 9th which was

[00:43:46] Speaker 01:
six days before the initial sentencing where the victim spoke.

[00:43:49] Speaker 01:
We don't know when his counsel showed that to him, or if he'd even received it, because the counsel said, I discussed it with him, but didn't say when.

[00:43:56] Speaker 01:
We really have no idea when Mr. Bennell learned suddenly that it's not just $557,000, but millions of dollars.

[00:44:03] Speaker 01:
We had no idea when that was learned about, because that was never inquired into by the court.

[00:44:06] Speaker 01:
Finally, Your Honor, Reyes Bosque, the government's best case, said that the reason that it was OK to not allow substitution was specifically because the court asked follow-up questions.

[00:44:18] Speaker 01:
It said there was follow-up questions asked by the court.

[00:44:21] Speaker 01:
That's that Reyes Bosque, I'm sorry, when Reyes Bosque gave additional reasons for substitution, the counsel prevented him from testifying and did not call certain witnesses.

[00:44:32] Speaker 01:
The court asked specific follow-up questions.

[00:44:34] Speaker 01:
It did that in Reyes Bosque to determine the extent of the conflict.

[00:44:38] Speaker 01:
That's the thing the court here explicitly refused to do.

[00:44:40] Speaker 01:
And then in the next paragraph, it also says there was no evidence that the conflict was so extensive that it prevented Reyes Bosque from communicating with his attorney.

[00:44:48] Speaker 01:
Well, here we have the opposite.

[00:44:49] Speaker 01:
We do have.

[00:44:50] Speaker 01:
They weren't communicating.

[00:44:51] Speaker 01:
That's clear.

[00:44:52] Speaker 01:
And in Demora and Gonzalez, that's just a hallmark of a debilitating breakdown in the relationship that Rapport had the very minimum for the inquiry.

[00:45:00] Speaker 01:
Why didn't he move to withdraw earlier?

[00:45:02] Speaker 01:
Was it connected to the conflict?

[00:45:04] Speaker 01:
None of these questions were explored.

[00:45:05] Speaker 01:
And Your Honors, this added six to eight years to his guidelines calculation.

[00:45:09] Speaker 01:
It really skyrocketed his offense level.

[00:45:10] Speaker 01:
And it's profoundly important to the sentencing.

[00:45:12] Speaker 01:
I ask Your Honors to vacate the sentence and send it back, please.

[00:45:17] Speaker 02:
OK.

[00:45:17] Speaker 02:
All right, thank you, Council, and I thank Council for both sides for very helpful arguments in this matter.

[00:45:24] Speaker 02:
And this case is submitted, and that concludes our calendar for this week, and we are adjourned.

[00:45:44] Speaker 00:
Hear ye, hear ye.

[00:45:45] Speaker 00:
All persons having had business with the Honorable the United States Court of Appeals for the Ninth Circuit will now depart for this court for this session.

[00:45:53] Speaker 00:
Stands adjourned.