[00:00:01] Speaker 00: Good morning, Your Honor. [00:00:02] Speaker 00: Tony Faramani on behalf of Mr. Rosorio. [00:00:06] Speaker 00: Your Honor, really, if ever we come across a case so clear. [00:00:11] Speaker 04: Mr. Faramani, I'm sorry to interrupt you. [00:00:13] Speaker 04: I wanted to let you know we actually have a little bit more time this morning. [00:00:16] Speaker 04: So we're going to put 15 minutes on the clock for each side. [00:00:19] Speaker 00: Thank you, Your Honor. [00:00:20] Speaker 04: That doesn't mean you have to take all the time if you don't need it, but you have it if you do. [00:00:23] Speaker 00: Thank you, Your Honor. [00:00:24] Speaker 00: You want to really, if ever you find a case so clear in the circuit, or any court for that matter, where the violation is clear, the prejudice is clear, and I think in this case, what happened was a district court got it right. [00:00:40] Speaker 00: The district court got it right the first time around, and then he turned around and relied on a factual matter that had absolutely nothing to do, or a legal matter that had nothing to do whatsoever with the claims, and that was that [00:00:52] Speaker 00: But simply the fact that Mr. Rosario had chosen his attorney, therefore he's not entitled to Sixth Amendment protection. [00:01:00] Speaker 00: And that's simply not the law. [00:01:02] Speaker 00: We choose our attorneys for trials all the time. [00:01:05] Speaker 00: We choose them for a number of different reasons. [00:01:07] Speaker 00: We're always entitled to Sixth Amendment protection. [00:01:11] Speaker 00: And we know from the undisputed record here, Your Honor, there is no doubt about it whatsoever that Mr. Pimento, whoever he was, whether he was a [00:01:22] Speaker 00: prisoner attorney or he was just an attorney that was retained or appointed, it simply does not matter. [00:01:29] Speaker 00: He had absolutely no clue, none whatsoever, about the charges. [00:01:33] Speaker 00: He had no clue about the applicable law. [00:01:36] Speaker 00: And in addition to that, he was manipulated by the government agents. [00:01:41] Speaker 00: The government agents, the FBI agents, sat there and told Mr. Osorio, clear cut, twice, that we're not charging you with the underlying felony of robbery, Hobbs Act robbery. [00:01:53] Speaker 00: And when in fact he had already been indicted, a super-sinny indictment had already been issued against him. [00:01:58] Speaker 00: They can lie to a suspect, Your Honor, but they can't misrepresent, they can't tell him that what you say can't be used against you. [00:02:16] Speaker 00: And that's precisely what they told him. [00:02:18] Speaker 00: So in one hand, they give him the Miranda warnings, but on the other hand, they say, well, [00:02:24] Speaker 00: You know, what you say here about the robbery can't be used against you, when in fact, all the charges, every single charge, including the felony murder, murder in second degree, assault on officers, all of them, their underlying crime was the robbery, either attempted to commit the robbery or conspiracy did. [00:02:42] Speaker 02: Mr. Formani, can you put aside that point for a second? [00:02:44] Speaker 02: Sure, Your Honor. [00:02:45] Speaker 02: What the agents said or didn't say during the interview. [00:02:49] Speaker 02: Here's what, here's the point I'd like you to help me out on. [00:02:54] Speaker 02: This interview occurs in Mexico. [00:02:56] Speaker 02: Mr. Osorio has a Mexican lawyer. [00:03:04] Speaker 02: The record doesn't tell us how Mr. Pimentel got there, but it appears he was retained in some way. [00:03:12] Speaker 02: And that Mexican lawyer, if this were all in the United States, it would be a very easy case. [00:03:17] Speaker 02: Look at this and say, this lawyer is so far below the standard of care. [00:03:21] Speaker 02: we can deal with this case without sending it back to a habeas. [00:03:26] Speaker 02: Tell me if it makes any difference in this case, that he has a Mexican lawyer and that he got warnings that said, if you can't afford counsel, counsel will be appointed for you, but maybe we can't do it right away because we're in Mexico. [00:03:41] Speaker 02: So I'm trying to figure out whether, as the government argues, by opting for a Mexican lawyer when he could have waited for an American one, [00:03:49] Speaker 02: Mr. Osorio really can't complain that he got a terrible Mexican lawyer. [00:03:53] Speaker 00: Well, Your Honor, there are two separate things, one being that he was in Mexico. [00:03:59] Speaker 00: Well, the United States committed itself to prosecuting Mr. Osorio. [00:04:06] Speaker 02: And I think he had, I'm not quibbling with the notion that he had the right to counsel during the interrogation, that he had the right to effective counsel during the interrogation. [00:04:15] Speaker 02: I'm trying to figure out [00:04:17] Speaker 02: what the effect, if any, is of his decision, apparently on this record it looks like his decision, to employ a Mexican lawyer rather than, as he could have done, wait until he was back in the United States and have an American lawyer be appointed. [00:04:33] Speaker 00: Your Honor, the risk when you get accused of a crime and you're indicted, the risk of the error of that error lies with the government, whether it's appointed or retained. [00:04:45] Speaker 00: We know that from Supreme Court law. [00:04:46] Speaker 02: I agree with you in a general case. [00:04:50] Speaker 02: What I'm trying to get some help on is, does that general rule apply when you hire a lawyer from another country who [00:05:01] Speaker 02: by definition, probably doesn't know much about American law. [00:05:06] Speaker 02: And instead of, as you have the option of doing, waiting until you're extradited and getting an American lawyer. [00:05:12] Speaker 02: Does that have any effect on the outcome of this case? [00:05:14] Speaker 00: I don't think it does, Your Honor, for two reasons. [00:05:16] Speaker 00: Number one, let's forget about the location for a moment. [00:05:19] Speaker 02: Let's assume we were- Well, but see, I'm asking about the location. [00:05:23] Speaker 02: I understand that if this were anywhere else, this would be very easy. [00:05:29] Speaker 02: I'm trying to figure out whether it becomes more complicated because your client chose to retain a Mexican lawyer to get advice from. [00:05:37] Speaker 00: So help me with that. [00:05:38] Speaker 00: No, because I think if I were to retain a lawyer from any place, [00:05:44] Speaker 00: any country, and that lawyer comes in and becomes ineffective, whether I'm in Mexico at the time that this incident is happening or the interrogation or the trial for that matter, or whether I'm in the United States. [00:05:59] Speaker 00: The fact that the United States is prosecuting the individual, that individual is entitled to the Sixth Amendment protections. [00:06:06] Speaker 00: regardless of where it happens. [00:06:08] Speaker 00: I think the critical factor, Your Honor, is not the location itself. [00:06:12] Speaker 00: I admit there aren't any cases out there to talk about a Mexican attorney. [00:06:16] Speaker 00: I admit that, Your Honor. [00:06:17] Speaker 00: But I don't think the location itself matters. [00:06:19] Speaker 00: What matters here is who the attorney was. [00:06:23] Speaker 00: What advice did the attorney provide? [00:06:26] Speaker 00: And when you look at the record, it's as clear as day. [00:06:31] Speaker 02: Let me pose a hypothetical to you, because I think the record is clear as day that the advice is [00:06:36] Speaker 02: far below the standard we would expect. [00:06:40] Speaker 02: And you don't have to tell me these are not the facts of this case, because they're not. [00:06:43] Speaker 02: I'm making them up. [00:06:46] Speaker 02: I assume that Mr. Osorio met with Mr. Pimentel, who said to him, I don't know anything about United States law. [00:06:53] Speaker 02: I'm a real estate attorney in Mexico. [00:06:57] Speaker 02: And you would be better off waiting. [00:06:59] Speaker 02: And Mr. Osorio then said, no, let's go ahead with this. [00:07:04] Speaker 02: I can handle an interrogation. [00:07:06] Speaker 02: Under those circumstances, is it fair to the government to hold Mr. Pimentel to the standards of an American defense lawyer? [00:07:18] Speaker 00: Absolutely, because we have American defense lawyers who don't know, who are as incompetent as Mr. Pimentel. [00:07:25] Speaker 00: We have that. [00:07:26] Speaker 00: We've seen that before at trials. [00:07:28] Speaker 00: We've seen it where people come in and they just simply do not know what the law is. [00:07:32] Speaker 00: I mean, most people do not, unless you practice in federal criminal law in the federal courts, you don't know that an underlying robbing drug dealers can, in fact, be a crime. [00:07:44] Speaker 02: Yeah, actually, I'd go further with you. [00:07:46] Speaker 02: I think most of the students in this room [00:07:48] Speaker 02: would not have given the advice to Mr. Rosario that Mr. Pimentel did. [00:07:53] Speaker 02: So I'm not even sure. [00:07:54] Speaker 02: I think it falls below any standard. [00:07:56] Speaker 02: I'm just trying to figure out what difference it makes where it occurred and who Mr. Pimentel was. [00:08:01] Speaker 00: I thought about this. [00:08:02] Speaker 00: And again, I admit there are no cases right on point. [00:08:05] Speaker 00: But I will say that the location is a red herring. [00:08:09] Speaker 00: The location has not. [00:08:09] Speaker 04: What I'm saying is that there's no case on point with these facts. [00:08:13] Speaker 04: I mean, we have cases that very clearly [00:08:16] Speaker 04: state that the Sixth Amendment attaches in an interrogation. [00:08:19] Speaker 04: And the question, I think, as you've said, is what the advice is and whether it falls below the objective reasonable standard. [00:08:26] Speaker 04: So what you're really saying is that you don't have a case that has these facts in them. [00:08:33] Speaker 00: Yes, Your Honor, meaning a fact where the Mexican attorney is hired in Mexico and is sitting at an interrogation. [00:08:46] Speaker 00: We don't know what he said privately, but we do know that when he comes in on the record, what he says is below the standards. [00:09:03] Speaker 03: Would it matter? [00:09:07] Speaker 03: We don't know what was said in that conversation. [00:09:13] Speaker 03: And now that your client is, in essence, attacking Pimentel for giving ineffective assistance to counsel, [00:09:16] Speaker 03: the attorney client privilege comes off, and we could find that out if we could find Pimentel and depose him or push the court in range area or infer the magistrate or something like that. [00:09:30] Speaker 00: Why shouldn't we send this case back to find that out? [00:09:41] Speaker 00: Yes, Your Honor. [00:09:42] Speaker 00: And the assumption would be that Mr. Pimentel told what Judge Hurt is indicating. [00:09:47] Speaker 00: Or something. [00:09:48] Speaker 02: We also don't have any evidence from your client. [00:09:50] Speaker 00: But it doesn't matter. [00:09:51] Speaker 00: I don't think it matters at all, Your Honor, because the critical fact here is that he was a representative. [00:10:00] Speaker 00: There was a mention about if a family member showed up and sat next to him. [00:10:06] Speaker 00: Well, the government couldn't interrogate him at that point. [00:10:09] Speaker 00: He's entitled. [00:10:09] Speaker 00: He says he wants his attorney. [00:10:11] Speaker 02: They could have had he consented to being an attorney. [00:10:13] Speaker 02: They could have. [00:10:14] Speaker 02: He consented with Mr. Pimentel there. [00:10:16] Speaker 00: But we know he didn't consent to an interrogation without an attorney. [00:10:23] Speaker 00: We know he was not only entitled to an attorney because the Sixth Amendment had attached at post-indictment interview or interrogation, but we also know that he wanted an attorney. [00:10:35] Speaker 00: He invoked his right to cancel. [00:10:38] Speaker 00: And once he invoked his right to cancel, the risk shifts to the government. [00:10:43] Speaker 00: in a Sixth Amendment context. [00:10:44] Speaker 00: Now, if we're on habeas and we appoint counsel, yes, you're not entitled to that protection. [00:10:50] Speaker 00: But this is a direct, this is a criminal case. [00:10:52] Speaker 02: But you're not asserting in this case, as you might, that when he said, I'm not gonna talk to you without my lawyer, what he meant was, I'm not gonna talk to you until I'm back in the United States and have an American lawyer. [00:11:04] Speaker 00: No, I don't think we can take it that far, Your Honor, but what we can say is that he says, I want a lawyer. [00:11:09] Speaker 00: A lawyer shows up, he's woefully ineffective. [00:11:13] Speaker 00: And what he says behind closed doors in that 10 minutes that they're talking about, Your Honor. [00:11:19] Speaker 00: Let's say he told them, look, I have absolutely no idea what's going on here. [00:11:23] Speaker 00: I'm just going to go in. [00:11:24] Speaker 00: But when you tell him, I don't have any idea, it's different than when you tell him, why don't you confess to the crime? [00:11:32] Speaker 00: They're two separate things. [00:11:35] Speaker 04: So let's assume for a minute that we agree that the advice that was given was, [00:11:40] Speaker 04: was below the standard. [00:11:42] Speaker 04: What is your best case for why we should decide this issue on direct appeal and remand versus throwing this to Haiti? [00:11:53] Speaker 00: Well, we have plenty of cases to talk about. [00:11:56] Speaker 00: Generally speaking, you're correct, Your Honor, that it would be something that would be flushed out at an evidentiary hearing. [00:12:03] Speaker 00: But in this case, there are nine circuit cases cited in a brief. [00:12:07] Speaker 00: There aren't squirrely on point, obviously, because this fact pattern hasn't arisen before. [00:12:12] Speaker 00: But what it says is if the record is clear, such as on a transcript, like a pre-quickie on a transcript. [00:12:19] Speaker 04: What is your best case? [00:12:20] Speaker 00: The best case I have, Your Honor, would be [00:12:24] Speaker 00: I would say the number of cases, I will look it up when I sit down for rebuttal. [00:12:29] Speaker 00: I will let you know, Your Honor, if I may. [00:12:31] Speaker 00: But I think the general proposition and the holding of the Ninth Circuit is that if the record is clear, if we don't need to go outside of the record, then you don't need to hold an evidentiary hearing. [00:12:51] Speaker 03: Speaking of cases, do you have a case that involves an individual who was Miranda's property? [00:13:08] Speaker 03: responsibility of the government that still allows the disallowance of the condition? [00:13:16] Speaker 00: I would want to mention one thing. [00:13:18] Speaker 00: It is not beyond the government's ability. [00:13:20] Speaker 00: Because over here, the government not only had the ability to stop the interview, as a district judge, Barry pointed out, but also they added to the insult. [00:13:31] Speaker 00: They added to the injury. [00:13:32] Speaker 00: They added insult to the injury. [00:13:33] Speaker 00: They said to him that what you say can't be used against you. [00:13:38] Speaker 00: No, that's what the FBI agent said. [00:13:41] Speaker 00: And then Pimentel followed up by saying, look, it can't be that you can be. [00:13:45] Speaker 00: You can say whatever you want. [00:13:47] Speaker 00: They can't prosecute you. [00:13:48] Speaker 00: And then at the end, he says, well, I don't know how that could be. [00:13:52] Speaker 03: Yes, Your Honor. [00:13:58] Speaker 00: Yes, Your Honor, I do have it, absolutely. [00:14:00] Speaker 00: Yes, yes, I may. [00:14:11] Speaker 01: Good morning, may it please the court, Benjamin Hawley for the United States. [00:14:15] Speaker 01: Picking up on that last point, I would point to page 89 of the record is what counsel is referring to in terms of what the agent said. [00:14:23] Speaker 01: But I would note in the context there, it was clear that no one was confused or thinking that he wasn't being charged with that because right after that, on that same page, his counsel, Mr. Pimentel, says he's talking about the third and fourth ones, not the first and second, correct? [00:14:37] Speaker 01: And the agent says, yes. [00:14:39] Speaker 01: The third and fourth charges are the robbery charges. [00:14:41] Speaker 01: The first and second are the two murder charges. [00:14:44] Speaker 01: They knew what the charges were. [00:14:45] Speaker 01: They referred to them there. [00:14:46] Speaker 01: At other points, the record of proceeding that Mr. Pimentel and Mr. Osorio both signed lay that out and say you voluntarily agreed to speak with government agents from the United States. [00:14:57] Speaker 02: And they both knew what he was charged with. [00:15:00] Speaker 01: Correct. [00:15:00] Speaker 01: The indictment by that point had been unsealed in public. [00:15:02] Speaker 01: And co-defendants had gone to trial and been convicted. [00:15:05] Speaker 02: Turn back to the issue that I raised with your friend, and let's assume for a moment that the government agents didn't do anything wrong during the interview. [00:15:16] Speaker 02: It seems, and I think you would admit, if this had occurred in Tucson, it would be a slam dunk ineffective assistance of counsel case. [00:15:25] Speaker 01: As to the advice, not as to prejudice, but the advice was wrong. [00:15:28] Speaker 02: The advice was plainly wrong. [00:15:31] Speaker 02: I think we would probably infer prejudice from the fact that somebody followed the advice. [00:15:36] Speaker 02: So why shouldn't we reach the same result in this case? [00:15:40] Speaker 01: For two reasons, or at least as to the first part is because we don't have all of the information and that is either a reason not to review on direct appeal or because it's Mr. Osorio's burden, a reason [00:15:52] Speaker 01: to find that it was not ineffective. [00:15:55] Speaker 01: There's a lot that we don't know. [00:15:57] Speaker 04: So in terms of at least the Fifth Amendment part about whether he should be talking at all. [00:16:07] Speaker 04: Sure. [00:16:09] Speaker 01: So there it depends on why he was giving that advice. [00:16:12] Speaker 01: It's entirely possible that it's because he didn't know the law, he was just flat out wrong. [00:16:18] Speaker 01: But this court has consistently said that we want to know not only what was done, but why it was done. [00:16:22] Speaker 02: But what if there's no conceivable reason why a defense lawyer, and I mean maybe we shouldn't speak from personal experience, but at least Judge Hawkins and I have both done this in the past. [00:16:34] Speaker 02: would ever give that advice? [00:16:36] Speaker 02: Admit to facts which will establish that you are guilty of felony murder. [00:16:42] Speaker 02: Without asking the other side, gee, if he admits to that, will you make him a deal or will you drop some charges? [00:16:49] Speaker 02: It's inconceivable to me that there was any strategic reason for giving this advice. [00:16:56] Speaker 02: And you haven't been able to think of any in your very good briefs either. [00:16:59] Speaker 02: So what are we going to find out if we send it? [00:17:02] Speaker 01: So in the brief, the one we posit is that Mr. Osorio is essentially fighting on a ground that everyone knows is false. [00:17:09] Speaker 01: The agents are saying, we know this is false. [00:17:11] Speaker 01: We have proof this is false. [00:17:12] Speaker 01: And so fighting there is not going to buy him credibility. [00:17:15] Speaker 01: It's not going to get him potentially cooperation credit. [00:17:17] Speaker 01: In other words, ignore that one. [00:17:18] Speaker 01: Let's talk about the one that matters, the murder charge, and kind of move past that. [00:17:22] Speaker 01: And again, that may not be the reason. [00:17:24] Speaker 01: The problem is we don't know. [00:17:25] Speaker 01: The record is unclear because there was not a declaration from Mr. Pimentel. [00:17:29] Speaker 01: There was none of this. [00:17:30] Speaker 01: And in fact, at the evidentiary hearing in the district court, part of the reason there is this derisive information is because the argument was different there. [00:17:37] Speaker 01: There the argument was for Mr. Osorio, I don't know who Mr. Pimentel was. [00:17:41] Speaker 01: He just kind of randomly showed up. [00:17:42] Speaker 01: He was not my lawyer. [00:17:43] Speaker 01: So those facts weren't given. [00:17:44] Speaker 01: Sure. [00:17:44] Speaker 02: Judge Burry was dealing not within an effective assistance to counsel issue, but rather with your Fifth and Sixth Amendment issues. [00:17:50] Speaker 02: Correct. [00:17:51] Speaker 02: Let me phrase Judge Desai's question slightly differently. [00:17:56] Speaker 02: Because I think the only close question on this ineffective assistance to counsel claim [00:18:00] Speaker 02: is whether we deal with it ourselves or send it or remit Mr. Osorio to his habeas remedies. [00:18:07] Speaker 02: What are we going to learn if we send him to habeas that will possibly make this decision of this issue any different than we know what we know today? [00:18:15] Speaker 01: We would want to know what or not only what Mr. Pimentel said in that first part and for that matter any arrangement, why he showed up, any conversations they had before. [00:18:23] Speaker 01: But also, again, as I said, why? [00:18:25] Speaker 01: Many of this court's cases go into the, why were you doing that? [00:18:28] Speaker 01: And if the answer is, I just didn't know anything, then that is ineffective assistance, at least as to the deficient advice portion of it. [00:18:36] Speaker 01: We would agree with that. [00:18:37] Speaker 03: Is the government's case held or hurt if it turns out that Pimentel was really a government agent? [00:18:47] Speaker 03: That he hangs around the jail waiting [00:18:50] Speaker 03: for a potential suspect that he can nudge into the gentle clutches of the United States government and gets rewarded for that? [00:19:01] Speaker 01: I mean, I would think that would hurt our case. [00:19:04] Speaker 01: Certainly, if the government had appointed him or was somehow. [00:19:06] Speaker 03: Well, if he's a government agent, the case law says he can lie, right? [00:19:11] Speaker 01: I suppose in that case, yes. [00:19:13] Speaker 01: I'm sorry I hadn't thought through that hypothetical. [00:19:15] Speaker 01: That's what we get paid for. [00:19:17] Speaker 01: Indeed. [00:19:19] Speaker 01: If he were appointed by the United States and was acting as his attorney, Mr. Osorio had no reason to doubt that he was kind of an independent counsel, then I think that would be a problem in terms of the advice, though I do take the point that, as we set out in our brief, agents aren't constrained in the same way as attorneys would be. [00:19:37] Speaker 03: One question that doesn't affect the outcome here. [00:19:39] Speaker 03: Whatever happened to Toledo? [00:19:42] Speaker 01: It's not clear from the record, and I don't personally know. [00:19:44] Speaker 03: Did the government make any attempt to contact him? [00:19:48] Speaker 03: the lawyer that had been appointed for him for the extradition proceedings, and he was a lawyer in Mexico City. [00:19:56] Speaker 01: Correct. [00:19:58] Speaker 01: So the answer is not in the record and not as far as I know. [00:20:01] Speaker 01: Again, the district court proceedings were more focused on who Mr. Pimentel was, why he showed up, and not on the advice he gave specifically and delving into those facts. [00:20:12] Speaker 04: OK, thank you. [00:20:14] Speaker 02: Sorry, go ahead. [00:20:15] Speaker 02: You just said something, and I want to make sure I heard you right. [00:20:18] Speaker 02: Let's assume for a moment that there's nothing else, no other facts to discover just for purposes of this question. [00:20:25] Speaker 02: Is it the government's position that we measure Mr. Pimentel's performance by the standards of an average competent defense lawyer in the United States or a competent defense lawyer or by the standards of a Mexican lawyer? [00:20:41] Speaker 01: Neither. [00:20:42] Speaker 01: It would be that he is not counsel, the ineffective assistance counsel of counsel framework [00:20:47] Speaker 01: would not apply to this scenario. [00:20:48] Speaker 02: So you don't think he was counsel? [00:20:51] Speaker 01: Not for IAC claims. [00:20:53] Speaker 01: In the same way that to remove the foreign element from it, if it were here and a defendant says, you know, he's read as Miranda Rice and says, I'm willing to speak, but I want my law student friend to sit in with me or my mother or whoever. [00:21:03] Speaker 02: Well, that takes me back then to the voluntariness of the waiver. [00:21:08] Speaker 02: I thought Mr. Osorio, at least this record suggests to me that he understood he was exercising his right to counsel and that [00:21:16] Speaker 02: the counsel who showed up was a Mexican lawyer. [00:21:18] Speaker 02: And I understand it was explained to him that the government would provide counsel if he waited, and it might take a while. [00:21:25] Speaker 02: But if you're right, then when he invoked his right to counsel, shouldn't have somebody said to him, this doesn't count as counsel. [00:21:35] Speaker 01: So two responses, one factual and one legal. [00:21:38] Speaker 01: On the factual side, he didn't really invoke his right to counsel broadly. [00:21:42] Speaker 01: He wanted Mr. Pimentel specifically. [00:21:43] Speaker 01: That's right. [00:21:43] Speaker 02: No, he wanted Mr. Toledo. [00:21:45] Speaker 02: He said when the agents first approached him, I'm not going to talk to you, I have a lawyer, his name is Toledo, get him. [00:21:51] Speaker 02: And they tried to get him and he didn't, and then all of a sudden Mr. Pimentel shows up. [00:21:55] Speaker 02: We don't know why, but at the end of, after the agent reads in the Miranda, foreign Miranda warnings, he said, now, and now were you willing to talk to him? [00:22:05] Speaker 02: And the agent says yes. [00:22:06] Speaker 02: And I think one could infer a waiver of Miranda rights from that. [00:22:10] Speaker 02: Mr. Pimentel said earlier he's willing to talk to you. [00:22:14] Speaker 02: But he was willing to talk to him under the impression that he was being represented by counsel. [00:22:20] Speaker 02: And what you're saying to us is he really wasn't being represented by counsel. [00:22:24] Speaker 02: So why wasn't, why weren't you required at that point to stop the proceedings and provide him with American counsel? [00:22:32] Speaker 01: So first of all, to push back slightly on the facts, I don't believe he was wanting Mr. Toledo specifically. [00:22:36] Speaker 01: He mentioned he was on the file. [00:22:38] Speaker 01: His expedition lawyer. [00:22:39] Speaker 01: Correct. [00:22:40] Speaker 01: No, I'm saying he did not request him specifically as opposed to Mr. Pimentel. [00:22:43] Speaker 01: They waited three hours. [00:22:45] Speaker 01: There are other, like, do you want this other attorney? [00:22:47] Speaker 01: No, I want my guy, Mr. Pimentel. [00:22:50] Speaker 02: My guy originally was Toledo because he had been on the expedition case. [00:22:54] Speaker 01: But I don't think he requested him by name. [00:22:56] Speaker 01: And I may be misremembering the record, but I don't think that's the case. [00:22:59] Speaker 03: He tried to call him, didn't he? [00:23:01] Speaker 01: He called somebody. [00:23:02] Speaker 01: So the agent's declaration said, I saw him on the payphone. [00:23:05] Speaker 01: I assumed he was trying to call his attorney. [00:23:06] Speaker 02: The agent certainly understood the person he was trying to get in touch with was Toledo. [00:23:10] Speaker 02: They say so. [00:23:12] Speaker 01: If I'm misremembering the record, I apologize. [00:23:14] Speaker 01: My memory of it was that. [00:23:15] Speaker 02: But it really doesn't matter. [00:23:16] Speaker 02: He wanted to get in touch with a Mexican lawyer. [00:23:20] Speaker 02: He finally got a Mexican lawyer. [00:23:22] Speaker 02: But what you're saying was he really didn't have a lawyer for purposes of interrogation. [00:23:27] Speaker 02: Why weren't his Sixth Amendment rights violated when the government said to him, look, you can have this guy sit through this if you want. [00:23:35] Speaker 02: But you are entitled to a real lawyer. [00:23:40] Speaker 02: And we would be required to appoint one for you if you asked for one. [00:23:44] Speaker 01: So because the government agents didn't know who Mr. Pimentel was, and we certainly get into Dicey territory very quickly if we start asking the lawyer what his qualifications are and all of that. [00:23:54] Speaker 02: They certainly knew he wasn't in the United States law. [00:23:58] Speaker 01: I think that everyone presumed that. [00:23:59] Speaker 01: I don't know that anyone inquired into it. [00:24:03] Speaker 01: But again, to kind of come back to the analogy, the defendant is, in some sense, assuming the risk of whoever he has sitting with him. [00:24:11] Speaker 03: Oh, that can't be the law. [00:24:13] Speaker 01: No, in the sense that. [00:24:14] Speaker 02: That cannot be the law. [00:24:16] Speaker 02: If we were in the United States and you hired the worst lawyer in the world, and he showed up, you might have assumed the risk, even if folks had said to you, he's a terrible lawyer. [00:24:24] Speaker 02: But we'd still sustain an ineffective assistance to counsel. [00:24:28] Speaker 01: Yes, because they are counseled. [00:24:29] Speaker 01: If you had a friend who was not a lawyer sit in, and that's what I meant by assume the risk, if you just have someone else, I'm willing to speak to you, but I want my friend to sit in with me, that's fine, but then you don't get to turn around and say, well, that guy gave me ineffective advice because he was not counseled for American law purposes in the United States. [00:24:45] Speaker 03: Can we tell from this record whether Pimentel understood by advising Osorio that it was not a crime to rob drug dealers? [00:24:57] Speaker 03: that he knew what he was talking about? [00:25:02] Speaker 01: I mean, the advice was wrong. [00:25:03] Speaker 01: We don't know why he gave it. [00:25:05] Speaker 01: I'm not sure if I'm answering your question. [00:25:08] Speaker 01: The record is not clear as to what his understanding of the law more generally was. [00:25:11] Speaker 01: He knew about the indictment because he references it several times, and he knew about the other cases. [00:25:16] Speaker 03: Let me ask the basic question. [00:25:19] Speaker 03: Did he understand he was giving away the store? [00:25:22] Speaker 01: I don't think so. [00:25:23] Speaker 01: It doesn't appear to be, again, from what we know. [00:25:25] Speaker 03: Because if he had read that indictment, [00:25:27] Speaker 03: and looked at any respect he would have understood that there was no, the reason the government was going on a felony murder theory was they couldn't prove who actually shot the agent, correct? [00:25:42] Speaker 03: So when he has, encourages him or tells him go ahead and talk about this, he's giving away the story. [00:25:50] Speaker 01: And there's no indication in the record that he necessarily understood the implication. [00:25:54] Speaker 03: But he had read the indictment or been told about it. [00:25:56] Speaker 01: They had the indictment that he knew what had happened to the co-defendants. [00:26:00] Speaker 01: He talked about the sentences from the co-defendants who had already gone to trial before this. [00:26:04] Speaker 01: So he had at least some knowledge kind of more broadly. [00:26:07] Speaker 01: Again, the limits of that, the extent of that, what he thought he was doing is nowhere in the record. [00:26:11] Speaker 04: You argue in your brief that Pimentel's advice may have been strategic. [00:26:15] Speaker 04: What possible strategic reason would there be to give advice to admit or confess to Pimentel? [00:26:22] Speaker 01: So cooperation credit, potentially, and building. [00:26:25] Speaker 02: But you've done a lot of this. [00:26:27] Speaker 02: have you ever had an American lawyer tell his client to cooperate without first asking whether he's going to get something for it? [00:26:35] Speaker 01: I have not. [00:26:35] Speaker 01: There are a few cases in other circuits where that has come up, and it's been analyzed through an IAC framework. [00:26:41] Speaker 01: And it's not per se prejudice, is what I can say there. [00:26:44] Speaker 01: But no, as the district court found unusual, rare, most lawyers would not advise their clients to speak in that scenario. [00:26:50] Speaker 03: The district court made a factual finding, correct me if I'm wrong, [00:26:56] Speaker 03: that Osorio was told that he could wait until he got back in the US and had access to an American lawyer. [00:27:06] Speaker 03: Is that correct? [00:27:09] Speaker 01: Yes, with a caveat. [00:27:10] Speaker 01: In the Miranda warning, he was told, we can appoint you counsel. [00:27:13] Speaker 01: Our ability to do so now may be limited by the availability of license, an attorney who can practice in the United States. [00:27:20] Speaker 03: What I'm asking, what's the factual support for the idea [00:27:24] Speaker 03: that Osorio was told and therefore knew, if he simply shut up, he could wait until he got back to Phoenix or Tucson. [00:27:33] Speaker 01: I think that would be contained within the Miranda warning. [00:27:35] Speaker 01: There wasn't anything I'm aware of. [00:27:37] Speaker 01: Nothing outside. [00:27:38] Speaker 01: Beyond that. [00:27:38] Speaker 01: At least from the agents, again, that we know of outside that conversation with counsel. [00:27:43] Speaker 01: Thank you. [00:27:44] Speaker 01: I could briefly discuss prejudice. [00:27:46] Speaker 01: In the government's view, there is not prejudice here because this is not a [00:27:49] Speaker 01: full confession, and it was not argued that way in closing argument. [00:27:53] Speaker 02: So is it harmless error? [00:27:56] Speaker 01: It would not be. [00:27:56] Speaker 02: In other words, I'm having a hard time seeing that a confession to, in effect, as Judge Hawkins says, the giving away the store, would ever not prejudice somebody. [00:28:09] Speaker 02: I thought your argument was different that, and I didn't understand it, I thought it was different, so maybe I'm wrong, is that [00:28:17] Speaker 02: The bad advice didn't prejudice him because he was going to confess anyway. [00:28:21] Speaker 02: And I was going to ask you whether there's anything in the record to support that. [00:28:25] Speaker 01: So it is not the latter point. [00:28:26] Speaker 01: We don't know that he would have confessed or made those statements anyway. [00:28:31] Speaker 01: Our point is more that at trial, this was not a situation where, to use closing argument as an example, we come in and say at the beginning, he confessed. [00:28:38] Speaker 01: Here's the evidence. [00:28:39] Speaker 01: And by the way, he confessed. [00:28:40] Speaker 01: We say it again in rebuttal. [00:28:42] Speaker 01: This was, I believe, 41 pages of argument. [00:28:44] Speaker 01: His statement was mentioned a few times. [00:28:45] Speaker 01: and every time as just kind of a tag-on to the other evidence. [00:28:48] Speaker 01: So I point to pages 1156 and 57 of the record, where the closing argument is, here's how we know, in that case, count three. [00:28:56] Speaker 01: Here's how we know that those elements are proven. [00:28:58] Speaker 01: And then there's one paragraph of, and Mr. Osorio confirmed this in a statement. [00:29:01] Speaker 01: But it's not leading with the confession. [00:29:03] Speaker 01: It's not highlighting the confession even. [00:29:05] Speaker 01: We have all this evidence, and he confirms this. [00:29:06] Speaker 02: Well, this is an argument you're making independent of whether or not the issue is ineffective assistance of counsel or violation of the Fifth Amendment. [00:29:15] Speaker 02: What you're saying is, [00:29:16] Speaker 02: If the confession was improperly introduced, it didn't prejudice Mr. Rosario in trial? [00:29:22] Speaker 01: Correct, as to both the Fifth and Sixth Amendment claims. [00:29:25] Speaker 02: Okay, but isn't it your burden to show that beyond a reasonable doubt? [00:29:28] Speaker 01: Certainly as to the Fifth Amendment, it would be harmlessness, yes. [00:29:32] Speaker 02: Thank you, Mr. Howard. [00:29:32] Speaker 00: Thank you. [00:29:35] Speaker 00: Your Honor, if I may, I'm just going to read from the record, now keeping in mind there are two agents who are Spanish-speaking talking to Mr. Rosario. [00:29:44] Speaker 00: The agent, he initially says that he was there to drop off food. [00:29:48] Speaker 00: Then they say, what was your intent? [00:29:49] Speaker 00: This is very important. [00:29:51] Speaker 00: And then tells them falsely. [00:29:53] Speaker 00: I mean, this is a quote from the record. [00:29:56] Speaker 00: And I can give you the page number, second volume. [00:29:58] Speaker 00: We've all read it. [00:30:01] Speaker 00: To say that, and another thing about the counsel talking about how Pimento wasn't representing himself as counsel. [00:30:10] Speaker 00: He could have been just somebody off the street, a brother or someone. [00:30:14] Speaker 00: He says, he says, I am your attorney. [00:30:16] Speaker 00: As your attorney, I'm going to tell you it's okay for you to confess. [00:30:21] Speaker 00: It's okay for you to confess to Robin. [00:30:22] Speaker 02: When the agents refer to him as the lawyer. [00:30:25] Speaker 00: Exactly. [00:30:25] Speaker 00: Everyone assumes he's the lawyer. [00:30:27] Speaker 02: Let's go back to what you started to talk about. [00:30:33] Speaker 02: Is it fair to say that they misrepresented to him with the consequences of confessing to being... Absolutely. [00:30:42] Speaker 02: Is that, but aren't agents allowed to do that? [00:30:45] Speaker 00: No, Your Honor, they're not. [00:30:46] Speaker 00: They're not allowed to outright lie about it. [00:30:49] Speaker 02: Don't they all the time say, talk to us now, it'll go better for you, and then it never goes better for you? [00:30:54] Speaker 00: Right. [00:30:54] Speaker 00: I mean, that's different. [00:30:56] Speaker 00: That's different that says, if you tell somebody, look, and oftentimes you read in these interrogations where they say, we're not promising you, but we'll talk to the DA, or we'll talk to the [00:31:07] Speaker 00: U.S. [00:31:07] Speaker 00: Attorney. [00:31:08] Speaker 04: You're out of time, but I would really like an answer to my question. [00:31:11] Speaker 00: I was going to address that right now, Your Honor. [00:31:15] Speaker 00: The best case that we have is the United States versus Al-Farine. [00:31:20] Speaker 00: And that would be 433 F3rd 1148 2006 case, Your Honor. [00:31:27] Speaker 00: And of course you have the U.S. [00:31:28] Speaker 00: Supreme Court case that says you don't need to wait. [00:31:30] Speaker 04: Thank you very much. [00:31:31] Speaker 04: This case is now submitted. [00:31:33] Speaker 04: Thank you.