[00:00:01] Speaker 03:
Thank you, you may be seated.

[00:00:07] Speaker 03:
Good morning.

[00:00:08] Speaker 03:
It's a pleasure to be here in Missoula, Montana for our oral argument calendar.

[00:00:16] Speaker 03:
I am joined today by Chief Judge Emeritus, Sid Thomas, and also by one of our newest members to the court, Judge Anthony Johnstone.

[00:00:31] Speaker 03:
My name is Mary Murguia.

[00:00:32] Speaker 03:
I'm Chief Judge of the Ninth Circuit Court of Appeals, and I welcome you all here today.

[00:00:40] Speaker 03:
This is the time set for two cases that we're going to hear on for oral argument.

[00:00:46] Speaker 03:
The first one is United States of America versus Hugo Yanez.

[00:00:52] Speaker 03:
Council are ready to proceed.

[00:00:53] Speaker 03:
You may come forward.

[00:01:00] Speaker 00:
Good morning, Your Honors.

[00:01:02] Speaker 00:
My name is Benjamin Darrow, and I represent Hugo Yanez in this habeas petition appeal.

[00:01:09] Speaker 00:
I'd like to reserve four minutes.

[00:01:15] Speaker 00:
May it please the Court.

[00:01:17] Speaker 00:
I'm here as an appointed attorney as part of the CGA Act, and as you all know, that's entitled to defendants who on habeas have a certificate of appealability, which was granted in this case.

[00:01:33] Speaker 00:
The government, I think, wants to make that the issue.

[00:01:35] Speaker 00:
The government also didn't want to have a hearing in this case, and I think that the court granting one, I think, shows that at least there's grounds for discussion about the appeal.

[00:01:47] Speaker 00:
In this case, Mr. Yanez had an enhancement to his sentence.

[00:01:52] Speaker 00:
It was a leader organizer type enhancement, and it was based upon a financial relationship allegedly he had with his live-in girlfriend.

[00:02:01] Speaker 00:
And that enhancement essentially made him not safety valve eligible.

[00:02:06] Speaker 00:
There was another enhancement that was alleged that was guns, and that one was not found as well.

[00:02:11] Speaker 00:
But once he became not safety valve eligible, he also moved up with the offense level because of the enhancement, and his sentence ended up being pretty stiff, 210 months.

[00:02:22] Speaker 00:
The district court denied the motion for habeas.

[00:02:25] Speaker 00:
In this case, it was interesting because the sentencing counsel changed, and that's when we're alleging essentially the error occurs is that sentencing.

[00:02:33] Speaker 00:
The harm is it's a Strickland standard, but essentially the error was not being prepared to address the issue of Ms.

[00:02:40] Speaker 00:
Bame, the girlfriend, and that error is not complete in the fact that she did counsel that sentencing, did address that issue, but only very briefly in rebuttal.

[00:02:52] Speaker 00:
And I think that there was also an error about not understanding all the facts.

[00:02:56] Speaker 00:
This is about four trips to Montana with drugs, but actually there were seven taken by one of the co-conspirators.

[00:03:01] Speaker 00:
And that set of facts, which comes out in the evidence that we thought would be at a hearing,

[00:03:07] Speaker 00:
at the district court level is, I think, in the set of facts that was provided after the reply period by the government in their notice of additional evidence.

[00:03:17] Speaker 00:
And I thought that was interesting, too, just because if we're having an evidentiary issue, this court might not be the precise place to do that.

[00:03:25] Speaker 00:
At the same time, we would rather win on that evidentiary issue.

[00:03:30] Speaker 02:
Mr. Darrow, could you give us a sense of what additional evidence

[00:03:35] Speaker 02:
you would seek to uncover in a hearing?

[00:03:40] Speaker 00:
Yes, so well first of all the court used a standard case of Maldonado and in doing so I think there's many ways that could have been distinguished, Mr. Yonans could have been distinguished.

[00:03:53] Speaker 00:
For example it was not seven trips or not four trips it was seven so he wasn't even the supplier for some of those trips.

[00:03:59] Speaker 00:
But all of that was in the pre-sentence report correct?

[00:04:04] Speaker 02:
Actually, the pre-sentence report only detailed four trips.

[00:04:08] Speaker 02:
But the Maldonado distinction, that's something to be developed at argument.

[00:04:14] Speaker 02:
You've had the opportunity to argue that distinction here.

[00:04:18] Speaker 02:
Do you really need a hearing for that?

[00:04:21] Speaker 02:
Do you need an evidentiary hearing?

[00:04:24] Speaker 02:
I'm trying to get to it.

[00:04:25] Speaker 02:
You talk about this need for an evidentiary hearing.

[00:04:27] Speaker 02:
I'm not sure what other evidence.

[00:04:28] Speaker 00:
I don't even know if you need to necessarily get there.

[00:04:30] Speaker 00:
I feel like the district court did err about the facts.

[00:04:33] Speaker 00:
The things that I think needed to be presented were things like how many actual trips were taken by folks, what the financial relationship was.

[00:04:45] Speaker 00:
I think that

[00:04:45] Speaker 00:
And then the standard is that the enhancement needs to be proved by a preponderance of the evidence.

[00:04:51] Speaker 00:
So the counsel wasn't, I think, prepared to rebut the statements in the PSR, which I think essentially were misconstrued.

[00:04:59] Speaker 00:
And I mean, part of the heart of this argument is that, and the district court addresses this with whether reasonable jurists could disagree about the financial relationship issue and how that

[00:05:10] Speaker 00:
It used to be that a husband or man had the bank account, and in this case they had a shared bank account, but the interpretation of the shared bank account and her going to get the money, even though she actually ran all the finances, was that he was in charge.

[00:05:25] Speaker 00:
And that's the exact connection that occurred.

[00:05:28] Speaker 00:
And I think that evidence rebutting that would have been what would have to have been put on.

[00:05:33] Speaker 00:
I think we had evidence to rebut that.

[00:05:35] Speaker 00:
An evidentiary hearing at the other level, though, at the district court level, might also include whether sentencing counsel felt that they did an effective job.

[00:05:45] Speaker 00:
And I would argue that they would, by their appeal, they recognized that there was essentially a strong legal argument against the enhancement

[00:05:53] Speaker 00:
that they failed to make at sentencing, and it wasn't applied by the judge at sentencing.

[00:05:56] Speaker 04:
The counsel did make an argument at sentencing about the enhancement and raised the issue.

[00:06:04] Speaker 04:
Your argument seems to be she didn't push it hard enough, which I'm not sure equates to ineffective assistance of counsel.

[00:06:14] Speaker 00:
So I think that very specifically had counsel found the case Maldonado, which was brought up by the sentencing judge.

[00:06:24] Speaker 04:
Right, but you fault her for not citing that case, but it was the sentencing judge who brought that case up, not anybody else.

[00:06:33] Speaker 04:
So I don't think at that point the only way she could rebut Maldonado was to interrupt the sentencing judge, right?

[00:06:41] Speaker 04:
Maybe ask for more time.

[00:06:43] Speaker 00:
I mean that or ask for a clarification about because in Maldonado the enhancement was applied to a person who had an employee.

[00:06:52] Speaker 00:
who was bringing the money back.

[00:06:54] Speaker 00:
And so I don't think that she was prepared to make that argument.

[00:06:59] Speaker 00:
I mean, hindsight's 20-20, but I don't think there was a strategic reason for her to miss Ms.

[00:07:06] Speaker 00:
Boehm as the person who might be in the supervised role.

[00:07:10] Speaker 00:
And that actually happened in the sentencing memorandum as well, where all of the discussion by counsel was about Ms.

[00:07:17] Speaker 00:
Bloom.

[00:07:18] Speaker 04:
Well, that's true, but the government did rely on that heavily.

[00:07:22] Speaker 04:
And it's hard to see a falter for not rebutting the government's, trying to rebut the government's assertions.

[00:07:28] Speaker 04:
So I mean, the whole question here is not whether the enhancement should be applied, whether or not she was ineffective in her presentation of the objection.

[00:07:38] Speaker 00:
And I agree, and that's what we're asking for either a hearing to determine or for this court to determine.

[00:07:45] Speaker 00:
And only then do we get to the enhancement issue.

[00:07:49] Speaker 00:
And what we're really asking for is for another opportunity to sentence Mr. Yanez with a fully informed judge who can see all the facts, including facts like the ones that have been submitted to this court.

[00:08:03] Speaker 02:
Mr. Darrow, could you speak just a bit before your opening time is up?

[00:08:07] Speaker 02:
on the certificate of appealability.

[00:08:09] Speaker 02:
What's your response to the government's concern that it's incomplete?

[00:08:17] Speaker 00:
I don't think the district court judge erred in that regard, and I'm fearful that if the government were to win on this argument, they will have won twice procedurally in this case because they also won on the argument that an appeal wasn't appropriate because she waived her appeal.

[00:08:33] Speaker 00:
And so I think the district court was correct.

[00:08:36] Speaker 00:
I think one prong of Strickland was clearly met and I think reasonable jurors could disagree about the other and that's an opportunity for

[00:08:47] Speaker 00:
the appellate court to be those reasonable jurists to see if you disagree.

[00:08:51] Speaker 00:
So I think that's why a certificate of appeal should be granted.

[00:08:54] Speaker 00:
Again, I think that that is an argument at the end, a little bit like my argument about a hearing.

[00:09:00] Speaker 00:
I don't know if it necessarily needs to go both directions.

[00:09:02] Speaker 00:
It's complicated.

[00:09:04] Speaker 00:
But it would be a denial not on the merits again for Mr. Giannis.

[00:09:09] Speaker 03:
So just before you close your first part here, after hearing the questions here,

[00:09:15] Speaker 03:
What's your best arguments to why the defense counsel at the time of sentencing was deficient?

[00:09:22] Speaker 03:
What do you want us to really focus on?

[00:09:25] Speaker 00:
The defense counsel was not prepared to address the Maldonado factors.

[00:09:29] Speaker 00:
The defense counsel failed to bring up that there were more trips.

[00:09:33] Speaker 00:
The defense counsel failed to articulate the problem with Ms.

[00:09:37] Speaker 00:
Bain being found to be in a supervised role because

[00:09:41] Speaker 00:
there was actually a totally different type of relationship, not a leader organizer with his girlfriend.

[00:09:45] Speaker 00:
I think those are the key ones that should have been brought up.

[00:09:48] Speaker 03:
Thank you.

[00:09:49] Speaker 00:
Thank you.

[00:10:01] Speaker 01:
May it please the court, Tim Tatarka of the District of Montana, on behalf of the United States.

[00:10:07] Speaker 01:
The district court here correctly denied Mr. Yanez's motion for collateral relief because the record clearly, conclusively shows that his claim that counsel was constitutionally deficient was without merit.

[00:10:27] Speaker 01:
Counsel clearly objected to the supervisor enhancement and

[00:10:36] Speaker 01:
clearly argued that Mr. Yanez was not a supervisor of either co-defendant Bloom or Boehm.

[00:10:45] Speaker 01:
That's at excerpts of the record, pages 20 and 21.

[00:10:48] Speaker 02:
But Mr. Titarka, there's some disconnect between the amount of time counsel spent on Ms.

[00:10:55] Speaker 02:
Bloom, and although the objection was clear, there wasn't a lot of argument developed about Ms.

[00:11:01] Speaker 02:
Boehm in the end.

[00:11:03] Speaker 01:
I disagree, Your Honor.

[00:11:04] Speaker 01:
I mean, obviously, the argument wasn't that long.

[00:11:08] Speaker 01:
It was three pages of transcript from start to finish.

[00:11:13] Speaker 01:
But counsel did expressly make the argument that appellate counsel makes now, that BAME was just there to supervise her, you know, she was there to look after her money.

[00:11:26] Speaker 01:
That's an excerpt of the record, page 21.

[00:11:28] Speaker 01:
That is exactly the argument that Appellant made in his opening brief.

[00:11:34] Speaker 01:
And the other argument that he contends that she should have made was that, that Boehm, I lost my train of thought.

[00:11:49] Speaker 01:
Oh, one was that Boehm didn't have her counsel,

[00:11:58] Speaker 01:
was looking after her money.

[00:12:00] Speaker 01:
The other argument with respect to Maldonado was that the distinction that he wants to make with Maldonado was no money came back to Yanez.

[00:12:09] Speaker 03:
That is an argument that she made.

[00:12:15] Speaker 03:
the defendant here should have gotten a sentencing enhancement for leadership or role in defense as a leader of this conspiracy.

[00:12:25] Speaker 03:
That's where the main issue is here, right?

[00:12:28] Speaker 03:
And whether or not defense counsel was deficient at sentencing for not arguing that point harder, I think as Judge Thomas said.

[00:12:39] Speaker 03:
And there are some issues that have come up

[00:12:43] Speaker 03:
And particularly about Ms.

[00:12:45] Speaker 03:
Bain, who was, I think, the girlfriend of the appellant, and whether or not, was he really directing her to do anything, or was she doing it on her own?

[00:13:00] Speaker 03:
And so can you answer this?

[00:13:02] Speaker 03:
Because you have to have certain requirements to get the enhancement for leadership and role in the offense.

[00:13:10] Speaker 01:
Absolutely.

[00:13:10] Speaker 01:
And I do want to clarify that this is a two-level enhancement for being a manager supervisor, not a four-level enhancement for leader organizer.

[00:13:20] Speaker 01:
And this Court has been clear that all that requires is supervision of one

[00:13:26] Speaker 01:
a co-conspirator, and it can be in one aspect of the crime.

[00:13:30] Speaker 01:
And I would recommend the court's attention to Beltran on that point.

[00:13:33] Speaker 03:
But if it was Bain, which is what we're focused on, where is the evidence?

[00:13:38] Speaker 01:
It's at PSR paragraph 32.

[00:13:43] Speaker 01:
Clearly, Bain says that Mr. Yanez sent her to look after the money.

[00:13:50] Speaker 03:
And what's your best case to support that?

[00:13:55] Speaker 01:
Beltran.

[00:13:56] Speaker 01:
The Beltran case is very similar, in fact.

[00:14:00] Speaker 01:
In that case, the court affirmed based on the, again, a single case where the defendant there sent people to go pick up methamphetamine.

[00:14:14] Speaker 01:
Again, in this case, there was clearly enough to support the

[00:14:21] Speaker 01:
the judge's determination that the enhancement applied.

[00:14:23] Speaker 01:
I do want to address specifically the issue of whether or not counsel should have brought up – there was more that could have been made about what counsel – about the girlfriend, the fact that she was his girlfriend.

[00:14:36] Speaker 01:
I would note, as the district court noted below,

[00:14:41] Speaker 01:
That argument, which it was clear that the district court did know that it was a girlfriend, that they were in a boyfriend-girlfriend relationship.

[00:14:47] Speaker 01:
Ms.

[00:14:48] Speaker 01:
Bain.

[00:14:48] Speaker 01:
Ms.

[00:14:48] Speaker 01:
Bain and Yanez.

[00:14:50] Speaker 01:
The court says that at Excerpts of the Record 18 and 19.

[00:14:54] Speaker 01:
But that would have opened up, I would recommend the court's attention to PSR paragraph 91 and 92, which as the district court noted there, Ms.

[00:15:04] Speaker 01:
Bain had in fact told the PSR writer that

[00:15:10] Speaker 01:
Mr. Yanez was controlling in that relationship and she had in fact attempted to escape a number of times that he tracked her down.

[00:15:19] Speaker 01:
Those are all facts that counsel had very good reason not to want to bring up and was not unreasonable for not raising the sentencing argument.

[00:15:29] Speaker 03:
You argued today that the record is clear to support

[00:15:32] Speaker 03:
the conviction here and to support an affirmance here.

[00:15:37] Speaker 03:
Yet you ask us to grant your motion to supplement the record, which as you know, we rarely do on appeal.

[00:15:46] Speaker 03:
So if the record is so clear, why do you want to supplement the record on appeal?

[00:15:53] Speaker 01:
So the court is perfectly free to deny that as moot because the record is clear and that is what we think.

[00:16:02] Speaker 01:
We think that the rule four record is clear.

[00:16:05] Speaker 01:
The court can deny our motion as moot.

[00:16:07] Speaker 01:
However, Mr. Yanez was in fact asking for relief from the 2255, not just asking this court to decide the issue of the 2255, not just

[00:16:18] Speaker 01:
the evidentiary hearing, so we felt the court needed to hear the full story, know the full story, which was that Mr. Yanez had in fact admitted both sending Bame and that he was involved in four trips.

[00:16:35] Speaker 04:
But the government could have put that on at the sentencing hearing, correct?

[00:16:39] Speaker 01:
We didn't know, Your Honor.

[00:16:41] Speaker 01:
I mean, we didn't need to.

[00:16:42] Speaker 01:
You know, you didn't need to.

[00:16:43] Speaker 01:
Well, there was no, there was, so it was in the PSR.

[00:16:46] Speaker 01:
The PSR, paragraphs 33 and 34, do say that Yanez was responsible for the four trips.

[00:16:57] Speaker 01:
Because there was no objection, there was no need to put on... I realize that, I'm just saying.

[00:17:02] Speaker 04:
It's a little unusual when you didn't put on the evidence, the government didn't put on the evidence at sentencing for us to supplement the record so we're considering new evidence on appeal.

[00:17:11] Speaker 01:
And I agree, Your Honor.

[00:17:13] Speaker 01:
I agree that that would be a rare case.

[00:17:16] Speaker 01:
And again, we don't think it's necessary because we think the Rule 4 record is clear.

[00:17:21] Speaker 01:
However, I do think if the court found

[00:17:26] Speaker 01:
The court found that the Rule 4 record wasn't sufficient.

[00:17:28] Speaker 01:
This is the rare case where the mere existence of that recording makes clear that, because no reasonable jurist could find that counsel was deficient for not raising an objection that would have led to the admission of that evidence at

[00:17:55] Speaker 01:
at sentencing and invited the court to hear Yanez's own statements, especially with respect to the number of trips, that would not have gained him anything in terms, factually, didn't change the guideline range, didn't affect any of the enhancements, and would have opened him up to loss of, acceptance of responsibility, any chance at a

[00:18:19] Speaker 01:
at safety valve eligibility.

[00:18:21] Speaker 01:
So I agree that would be the rare case and I don't think it's necessary here because the Rule 4 record is clear, but we did want to present that so the court had the full view and I do think this would be the rare case where it would, that evidence shows that any remand would be futile.

[00:18:39] Speaker 02:
Mr. Chataka, what are we supposed to make of the certificate of appealability and the defects you point out?

[00:18:46] Speaker 02:
Wouldn't that require us to

[00:18:48] Speaker 02:
to send it back and maybe put the government in a position where it's filing a response?

[00:18:52] Speaker 01:
No, no, Your Honor, and I would recommend this Court's attention to the Barmer case, which was in front of this same, oh no, I guess you're right, that one, they did send it back.

[00:19:05] Speaker 01:
In this case, the court can find that the rule for

[00:19:12] Speaker 01:
The rule for record was sufficient.

[00:19:14] Speaker 01:
The COA was improvidently granted.

[00:19:17] Speaker 01:
And then consider the opening argument or the briefing here as a request for certificate of appealability and deny that.

[00:19:26] Speaker 03:
Did you cross appeal and try to figure out how this issue is before us on certificate of appealability?

[00:19:34] Speaker 01:
We did not cross appeal.

[00:19:35] Speaker 01:
We just asked the court.

[00:19:39] Speaker 01:
We moved to dismiss, essentially.

[00:19:42] Speaker 04:
Yeah, you know, why is this an exceptional case?

[00:19:45] Speaker 04:
That's our standard for vacating a COA issued by a district judge.

[00:19:51] Speaker 01:
Because the Rule 4 record is clear.

[00:19:54] Speaker 01:
So inherently there's tension between granting a Rule 4, granting a, or denying a motion on Rule 4, but granting a COA.

[00:20:07] Speaker 01:
But the standards are different.

[00:20:12] Speaker 04:
You relied on Hendrix, but that's a pre-EDPA case involving a certificate of probable cause and not a COA.

[00:20:22] Speaker 04:
And our subsequent cases on vacating a COA set a pretty high standard for doing that.

[00:20:30] Speaker 04:
And also, as a practical matter, then we just take it up anew, which is judicially inefficient.

[00:20:40] Speaker 04:
And I have to say, you know, generally speaking, if there's a chance, usually COA is going to be granted.

[00:20:48] Speaker 01:
I agree, but I do think there isn't a chance here.

[00:20:51] Speaker 01:
He did the Rule 4 analysis correct, and so I would argue that it's judicially inefficient to send it back down to remand.

[00:21:02] Speaker 01:
We would be perfectly comfortable with the court just affirming the rule four on the merits.

[00:21:08] Speaker 01:
The reason we brought up the argument of the COA is because we acknowledge that there is some tension between denying a motion on

[00:21:17] Speaker 01:
rule four and granting a certificate of appealability.

[00:21:20] Speaker 01:
In this case, we think the rule four analysis was correct.

[00:21:24] Speaker 01:
It could be affirmed on that basis.

[00:21:25] Speaker 04:
It's really not that uncommon for this to occur, particularly, for example, when somebody is arguing about three strikes and there's some difference on that and it's knocked out at screening and then the COE is granted.

[00:21:41] Speaker 01:
I would argue that that's different because that's a clear legal issue.

[00:21:45] Speaker 01:
So the same thing might be true, say, in a crime of violence issue, where the court might say, it's clear that if manslaughter is not a crime of violence, then the enhancement didn't apply, but the court may disagree about legally whether or not manslaughter is a crime of violence.

[00:22:04] Speaker 01:
But this is different than that because the question isn't one of sort of like impending legal issues.

[00:22:12] Speaker 01:
The facts in the record here clearly show that the rule four was denial was properly granted.

[00:22:20] Speaker 01:
Again, we're perfectly happy.

[00:22:21] Speaker 01:
We'll take any win we can get.

[00:22:22] Speaker 01:
We're perfectly happy with just an affirmance.

[00:22:26] Speaker 01:
But we just wanted to cover our bases.

[00:22:29] Speaker 03:
Unless there's no any other questions.

[00:22:31] Speaker 03:
Thank you.

[00:22:31] Speaker 01:
Thank you.

[00:22:34] Speaker 03:
You have some rebuttal time?

[00:22:41] Speaker 00:
Just briefly in rebuttal, I think that

[00:22:45] Speaker 00:
some of the issues that were raised by the government show the arguments that needed to be made at sentencing and therefore the ineffectiveness of sentencing counsel.

[00:22:54] Speaker 00:
Specifically, there was a failure to object at all to the number of trips described and the government was well aware of the number of trips that actually occurred because Mr. Yanez made the statement that was introduced as supplementary evidence to this court before any sentencing when he was arrested and that was when he indicated that

[00:23:15] Speaker 00:
the other person, Tavia Bloom, had taken at least seven trips.

[00:23:23] Speaker 00:
But none of them were supervised by him.

[00:23:25] Speaker 00:
So Ms.

[00:23:26] Speaker 00:
Bloom was already going.

[00:23:27] Speaker 00:
And I agree with you that if he sent someone even one time in a supervisory way, like you go and you come back, delivering people products, for example, that he knows at the end, like in Maldonado or as an employee, that would be sufficient.

[00:23:43] Speaker 03:
But what about Paragraph 32 on the PSR, the statement your friend across the aisle is pointing us to, where she says he sent me.

[00:23:54] Speaker 03:
Ms.

[00:23:54] Speaker 03:
Bing says she sent me.

[00:23:57] Speaker 03:
because he wanted me to make sure I got the money.

[00:24:00] Speaker 03:
It seems like a supervisory role in this conspiracy.

[00:24:05] Speaker 00:
Well, and that is the statement that the government relies on and that needed to be rebutted specifically though.

[00:24:11] Speaker 03:
Well, did you object to that in the pre-sentence report?

[00:24:13] Speaker 03:
Did the counsel below object to that in the pre-sentence report?

[00:24:16] Speaker 00:
They did not.

[00:24:17] Speaker 03:
So then the law is, if I understand it correctly, that if you fail to object, then that's the facts that the district court can consider.

[00:24:25] Speaker 03:
And it looks like the district court did consider that fact.

[00:24:28] Speaker 00:
That was the key fact.

[00:24:31] Speaker 00:
And I guess what my point is, is that had counsel presented, for example, the other information, then they would have been able to overcome that fact.

[00:24:40] Speaker 00:
And the other information, I think, is that there wasn't a supervisory relationship.

[00:24:44] Speaker 00:
There was a boyfriend-girlfriend relationship where they shared money.

[00:24:47] Speaker 00:
And she was actually the one who was in charge of managing the accounts, which is why she went to make sure that the money returned.

[00:24:52] Speaker 00:
And I think she uses the phrase her money as well.

[00:24:56] Speaker 03:
Would you like to make a concluding statement?

[00:25:00] Speaker 00:
Well, just briefly, regarding the certificate of appealability, I think that the district court judge got it right, and in this case, the

[00:25:10] Speaker 00:
development of the record on appeal is actually I think very interesting.

[00:25:14] Speaker 00:
I did not reply to this partly because I felt like my argument was good enough and then after that the government filed the supplemental authority and additionally it makes me regret not replying because of the certificate of appeal issue.

[00:25:30] Speaker 00:
So just in that regard, I think winning on a technicality, if the government wants to win, would be very unfair.

[00:25:37] Speaker 00:
Winning because the court determines that there's a question about ineffective assistance to counsel and that needs to be resolved by the district court would make a lot of sense from my perspective.

[00:25:46] Speaker 03:
Thank you.

[00:25:47] Speaker 00:
Thank you.

[00:25:48] Speaker 03:
Mr. Darrow and Mr. DeTarca, I appreciate your oral argument presentations today.

[00:25:54] Speaker 03:
I know normally this can be

[00:25:58] Speaker 03:
sort of challenging to make our argument presentations, but when you have an audience the size of this one, it sometimes is even more challenging.

[00:26:05] Speaker 03:
But thank you very much.

[00:26:07] Speaker 03:
The case of United States of America versus Hugo Llanes is submitted.