[00:00:09] Speaker 03:
Good morning, Your Honors.

[00:00:11] Speaker 03:
May it please the Court, my name is Tim Scott, and I'm representing Appellant Ms.

[00:00:15] Speaker 03:
Berry in the public, non-classified portion of this appeal here.

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We began in our briefing and in our argument with admittedly a higher-level proposition that the Sixth Amendment requires undivided loyalty.

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in terms of this actual conflict and – and the best case or the most similar case of situations like this.

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And so I'm going to try to answer that question here this morning.

[00:00:54] Speaker 04:
Our – I think our two best cases – these are your best cases for the proposition that – sorry, we're shifting gears from – airport searches.

[00:01:03] Speaker 04:
That's right.

[00:01:05] Speaker 04:
That's right.

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an attorney who has undivided loyalty in that particular case.

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There's two cases that I think bring some color to the fact pattern here.

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One is Noguera, which is the one that we cited in our 28-J, and one is Lewis, which we cited in our opening brief.

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Both, I think, teach that when circumstances are such that an attorney has information that they're forbidden

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didn't matter.

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I think that one's debatable.

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We might push back on that one.

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And then that his attorney tried is the other.

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So I think there's different answers to those two questions.

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Did he know that his attorney tried?

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He did know that his attorney tried.

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And our argument isn't that the attorney failed to try or that he didn't.

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And your argument isn't that he didn't try hard enough, right?

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Well, yes and no.

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He wasn't able to try hard enough.

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He wasn't able to use all of the information and all of the

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attorney otherwise would have been able to.

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government.

[00:05:08] Speaker 02:
the Sixth Amendment.

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Yeah, ultimately, the way that it played out in this case.

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Again, because if Mr. Zubary had known that at the time, then Mr. Zubary would have had that additional

[00:05:39] Speaker 04:
that somebody else was similarly situated.

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Correct.

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And the attorney had all of that information.

[00:05:46] Speaker 04:
Because you're assuming that the other individual was similarly situated?

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Yes.

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Mr. Arson.

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Aren't there pretty significant differences in the obstruction of justice category?

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or at a minimum, all of the facts should have been laid out both for Mr. Zuberi's consideration in determining whether or not to take the deal, but also the prosecutor or the prosecutor's supervisors.

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the government, I would say disappointingly, stood up and despite knowing that the

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We really have to send a message.

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He would have the opportunity to

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The kinds of charge that you just mentioned a minute ago are charge that I – in my experience, sentencing judges ask for because they're looking for sentence disparity.

[00:08:19] Speaker 03:
Right.

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And this is – I would argue – I hope I didn't step over the court's question.

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I was about to say I think this is even more fundamental because if you're – it's one thing to sort of parse this person got 48 months and this person got 12 months of the day, but if we're talking about this person is

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disparity.

[00:08:46] Speaker 04:
If our chart tells us that these folks were similarly situated, that's the big – right.

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That's the big if.

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Right, which we would, of course, argue isn't that much of an if just based on the record that we do have, based on the government's own.

[00:09:02] Speaker 02:
Does it follow from the proposition you're advancing?

[00:09:05] Speaker 02:
I mean, here, your proposition has the fact that

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opposition is that every defense

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I think that certainly is our duty.

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It is our best practice to try to do that if we can.

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But I think that the Court used the phrase a bridge too far.

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It probably would be a bridge too far to say that if you don't do those things in every case, then automatically that is a Sixth Amendment violation.

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But here we're talking about

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premise but if we assume the premise that they are similarly situated

[00:11:14] Speaker 02:
Well, no, I think, again, that's perhaps a bridge too far.

[00:11:18] Speaker 02:
But I don't know why it doesn't logically follow that you're

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the facts of that case to murder defendants.

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consideration to weigh between the two.

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I think most of us though

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if there's something that you know, if there's something that that attorney knows and isn't sharing, if there's something that that attorney could do that that attorney isn't doing.

[00:13:32] Speaker 03:
Yes, well, once the decision was made not to press – excuse me – not to press the U.S.

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Attorney's Office using the fact of the other deferred prosecution agreement.

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analysis, but this is the Coolier, I guess, or Lockhart, if they made a different choice because of the conflict.

[00:15:26] Speaker 01:
ineffective assistance of counsel argument, let's assume that there is an ineffective assistance of counsel argument to be made.

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It is or is not?

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That there is one to be made.

[00:15:41] Speaker 01:
That's right.

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What is the sort of the – again, just to follow up and to be clear on my own mind, what remedy are you seeking?

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hearing on ineffective assistance of counsel.

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Should your counsel – should your client specifically raise an ineffective assistance of counsel argument?

[00:16:06] Speaker 03:
No, we would argue that the record is sufficient to show the path taken and not taken, and that that demonstrates the conflict and that that's enough to warrant reversal because the client did not receive undivided loyalty of counsel under the Sixth Amendment.

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access to?

[00:18:15] Speaker 00:
Yes, the defense counsel did prepare a chart of sensing disparities.

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It did not include these Mr. Arsan in it, but it included many other defendants who either received no sentences, low sentences, or probation.

[00:18:29] Speaker 00:
No, I'm aware of that.

[00:18:30] Speaker 04:
I'm asking whether the government made any representation.

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I beg your pardon?

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when he comes back.

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for aiding and abetting

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to approximately $290,000 worth of FICA violations.

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Mr. Zuberi's PSR reflected about $774,000 of FICA violations.

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In addition, he had a restitution amount of $15.7 million.

[00:21:08] Speaker 00:
Pages 42 and 45 reflect the district court's determination that the DPAs would not have made a difference to its analysis.

[00:21:17] Speaker 02:
So the government doesn't believe that representing another defendant charged with- To be clear, when you say its analysis, you mean its analysis as to what the sentence was appropriate?

[00:21:26] Speaker 02:
That's correct, Your Honor.

[00:21:29] Speaker 00:
Representing another defendant

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and did not receive it.

[00:22:54] Speaker 01:
Arson adversely affected his Davis's performance.

[00:22:59] Speaker 01:
So my question is this.

[00:23:02] Speaker 01:
Putting yourself in the shoes of the defendant, doesn't that set an impossible standard for a defendant whose conflict claim rests on an allegation that his attorney did not inform him of this secret?

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in representation.

[00:23:33] Speaker 01:
How can he establish that his attorney's representation adversely affected his performance in his own case?

[00:23:47] Speaker 00:
Given that his attorney

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that was sought.

[00:24:17] Speaker 00:
This does indicate

[00:25:36] Speaker 00:
I'm going to trial this court in Washington versus Lampert

[00:26:52] Speaker 00:
identifiable instance of alleged conflict.

[00:27:44] Speaker 03:
Thank you, Your Honors.

[00:27:45] Speaker 03:
I don't have a great deal to add, other than just to say that I don't believe that the government did share with the Court, either in a chart or otherwise, that there were these deferred prosecution agreements.

[00:27:58] Speaker 03:
That was only revealed in a press release after Mr. Giverry was actually sentenced.

[00:28:05] Speaker 04:
All right.

[00:28:05] Speaker 04:
I think I misunderstood.

[00:28:25] Speaker 04:
Thank you.