[00:00:00] Speaker 04:
Submitted the third case for argument is United States versus Osby I Believe that mr. Schoenfeld is up first.

[00:00:23] Speaker 01:
Yes, thank you

[00:00:34] Speaker 01:
With the court's permission, I'd like to reserve two minutes for rebuttal.

[00:00:37] Speaker 04:
Keep your eye on the clock.

[00:00:38] Speaker 04:
As your friend over there learned, we keep by the clock.

[00:00:41] Speaker 04:
Okay.

[00:00:41] Speaker 04:
Understood.

[00:00:41] Speaker 04:
Thank you, your honor.

[00:00:43] Speaker 01:
May it please the honorable court, Richard Schoenfeld, appearing for the appellant, Joel Osby.

[00:00:49] Speaker 01:
As this honorable court is aware, this is an appeal from the denial without an evidentiary hearing of a petition brought under 28 United States Code section 2255.

[00:00:58] Speaker 01:
I will focus my argument on three issues.

[00:01:03] Speaker 01:
The first issue,

[00:01:04] Speaker 01:
is ineffective assistance of trial counsel as a result of sleeping through substantial portions of the trial.

[00:01:10] Speaker 01:
Second issue is the denial of an evidentiary hearing on the petition, including that issue of sleeping counsel.

[00:01:16] Speaker 01:
And the third issue is defendants counsel striking to African-American witnesses based upon their race.

[00:01:22] Speaker 04:
Counsel, can we start by focusing on your allegations about counsel sleeping?

[00:01:27] Speaker 04:
I've looked at what you allege and in the record it's very clear that he wasn't asleep.

[00:01:32] Speaker 04:
In each instance,

[00:01:34] Speaker 04:
He was making objections and so on.

[00:01:35] Speaker 04:
The judge said he wasn't asleep.

[00:01:38] Speaker 04:
In each instance, he responded.

[00:01:40] Speaker 04:
How do you address that?

[00:01:41] Speaker 01:
So I would address that with number one, the fact that there was no evidentiary hearing.

[00:01:46] Speaker 01:
We can't speculate that because he did object during portions of the trial.

[00:01:50] Speaker 01:
You think he's going to object when he's asleep?

[00:01:52] Speaker 02:
Well, obviously for those portions, he wasn't asleep, but we could make... But counsel, I'm looking at ERA.

[00:01:58] Speaker 02:
The trial judge said,

[00:02:00] Speaker 02:
Sorry, the order says, further unlike in Javore, this judge presided over the trial and did not witness counsel sleeping, thus notwithstanding the declaration, the court's recollection and the record both show that counsel was not sleeping.

[00:02:19] Speaker 02:
So this is not just his answering questions.

[00:02:23] Speaker 02:
This is the actual observation of the judge who said, I observed he wasn't sleeping.

[00:02:29] Speaker 01:
I understand that.

[00:02:30] Speaker 01:
But if we look at the holding in United States versus Reagan, which followed the Javor case,

[00:02:35] Speaker 01:
What the court said there is that perhaps like other witnesses in the case, the district court judge was looking elsewhere most of the time, for example, at the witness or the jury box.

[00:02:44] Speaker 01:
So what we have in this instance is four in the record.

[00:02:47] Speaker 01:
That's in United States versus Reagan.

[00:02:49] Speaker 04:
No, but you don't have that here.

[00:02:51] Speaker 04:
No, but we in the record here says the judge was looking.

[00:02:53] Speaker 04:
out at the birds in the jury box.

[00:02:55] Speaker 01:
I think common sense would dictate that the judge isn't looking at defense counsel for the entirety of the trial.

[00:03:01] Speaker 01:
The judge is going to look at witnesses, going to look at exhibits that are introduced, is going to look at the jury box, and we have four declarations that were irrefuted in this instance that said collectively that he was sleeping during portions of voir dire, that he was sleeping during witness examination by the government, that he was sleeping during the government's closing argument,

[00:03:20] Speaker 01:
That is a substantial portion of the trial and with the denial of an evidentiary hearing.

[00:03:25] Speaker 04:
We're a court of appeal.

[00:03:27] Speaker 04:
We look at the record.

[00:03:29] Speaker 04:
As my colleague pointed out, the judge said he wasn't sleeping.

[00:03:33] Speaker 04:
He says he wasn't sleeping.

[00:03:35] Speaker 04:
In each instance where there was an objection raised or something that would require him to respond, he responded.

[00:03:41] Speaker 04:
How do you overcome that?

[00:03:43] Speaker 01:
Four declarations, people declaring under oath that they observed him sleeping.

[00:03:46] Speaker 04:
You can get people to say almost anything, and we see it all the time.

[00:03:49] Speaker 04:
But in this case, we have the judge and the response in each case, even if it were true, in quotes, how are you prejudiced?

[00:03:57] Speaker 04:
In each instance, the objection was raised, the response was given, he was acting as the lawyer.

[00:04:05] Speaker 01:
Well, the prejudice analysis doesn't apply if the court were to determine that Mr. Stein was sleeping for substantial portions of the trial.

[00:04:12] Speaker 01:
And if you look at every case that discusses an attorney sleeping during a criminal trial, from Javor to Reagan to Tippins, every single case, even this case relied upon by the government, which is the Peterson case, an evidentiary hearing was held.

[00:04:28] Speaker 01:
Each and every case.

[00:04:29] Speaker 01:
Here we have four declarations of people saying under oath that they saw Mr. Stein sleeping throughout portions of the trial.

[00:04:36] Speaker 02:
You agree, counsel, I think this is in your brief, that the standard of review

[00:04:40] Speaker 01:
For conducting an evidentiary hearing is abuse of discretion standard of review for an evidentiary hearing is an abuse of discretion That's under Frazier however the court did say and I'll quote But when a defendant's allegations are based on facts outside of the record an evidentiary hearing is required And that's also in the Frazier case so we have a de novo review on the ineffective assistance portion

[00:05:02] Speaker 01:
and we have abuse of discretion on the evidentiary hearing aspect.

[00:05:05] Speaker 01:
That's remarkable.

[00:05:07] Speaker 04:
So you're saying that, say there's somebody who wasn't even in the courtroom.

[00:05:11] Speaker 04:
You have four people that say, that guy was sleeping.

[00:05:14] Speaker 04:
You're saying that that gets around an abuse of discretion and that requires an evidentiary hearing?

[00:05:20] Speaker 01:
The declarations were irrefuted, Your Honor.

[00:05:22] Speaker 04:
I understand that, but you know, you've got different perspectives, including the judge.

[00:05:27] Speaker 04:
And if the judge says he saw what he saw,

[00:05:30] Speaker 04:
Abuse of discretion is the standard.

[00:05:33] Speaker 04:
Each evidentiary issue that came up, the council responded.

[00:05:38] Speaker 04:
It's remarkable to me that you're saying that our case law says, if you get anybody else that says to the contrary, you have to have a hearing.

[00:05:45] Speaker 01:
That's crazy.

[00:05:46] Speaker 01:
Well, I respectfully would disagree because we have four declarations.

[00:05:51] Speaker 02:
And if you look at the Bowman case... But think of the council.

[00:05:52] Speaker 02:
Council, part of what you said is they were irrefuted.

[00:05:58] Speaker 02:
Maybe nobody put in a declaration that said witness one was in Brooklyn.

[00:06:05] Speaker 02:
But the district court said he wasn't sleeping.

[00:06:09] Speaker 02:
So to me, that's refuting.

[00:06:13] Speaker 02:
This person says this, but it didn't happen by the district judge.

[00:06:19] Speaker 02:
I mean, to me, that's a refutation.

[00:06:22] Speaker 01:
The district judge, I believe, stated that he didn't observe counsel sleeping.

[00:06:26] Speaker 01:
I don't believe that the district judge was crystal clear in terms of having watched him throughout the entirety of the trial.

[00:06:32] Speaker 01:
And as I stated in Reagan, the court noted.

[00:06:35] Speaker 01:
that you can't be looking at the defense lawyer for the entirety of the trial.

[00:06:38] Speaker 01:
And that's really what necessitated an evidentiary hearing.

[00:06:41] Speaker 01:
The government got an extension over our objection of four months within which to get a declaration from Steve Stein when he was still alive and failed to get that declaration.

[00:06:50] Speaker 01:
Had there been an evidentiary hearing, we would have Steve Stein's testimony preserved.

[00:06:54] Speaker 01:
We don't have that ability now, but what we do have are four declarations from four different people subject to penalty of perjury that identify different portions of the trial in which Mr. Stein was sleeping

[00:07:05] Speaker 01:
and that my client had to nudge him to wake him up.

[00:07:08] Speaker 01:
And when I say that it would be speculation to say that, although he objected here and he cross-examined witnesses there, we could make that same argument in terms of our other issues, for example, the failure to object to 404b evidence.

[00:07:19] Speaker 01:
We could speculate it's because he was sleeping during that examination.

[00:07:23] Speaker 01:
But that's the purpose of an evidentiary hearing, so that we don't speculate.

[00:07:26] Speaker 03:
What is the underlying constitutional standard?

[00:07:30] Speaker 03:
I mean, if the counsel does this off

[00:07:35] Speaker 03:
for 10 seconds and then wakes up because the room is hot and it's getting monotonous as they're, you know, going through background.

[00:07:45] Speaker 03:
Background questioning of the prospective jurors.

[00:07:51] Speaker 03:
That's not a constitutional violation.

[00:07:53] Speaker 03:
It doesn't have to be essentially a substantial period of a critical phase.

[00:08:00] Speaker 03:
And there,

[00:08:03] Speaker 03:
The trial judge's observation does carry, I think, a little more weight in terms of this.

[00:08:12] Speaker 03:
If he was asleep for a substantial period of time, essentially the judge seemed to say, I would have caught that.

[00:08:18] Speaker 03:
And I didn't see that.

[00:08:20] Speaker 03:
And so our review now is for abuse of discretion.

[00:08:23] Speaker 03:
And do the four declarations establish that he was asleep for a substantial period of time?

[00:08:30] Speaker 01:
They identify the periods as voir dire,

[00:08:33] Speaker 01:
cross-examination of government witnesses and closing argument.

[00:08:37] Speaker 01:
So that collectively... But how much?

[00:08:40] Speaker 01:
It doesn't identify the exact amount of time.

[00:08:42] Speaker 03:
Well, but that's part of the issue.

[00:08:44] Speaker 01:
That's also why an evidentiary hearing should have been held.

[00:08:46] Speaker 03:
But it's abuse of discretion, and if the threshold standard you have to show is that he's asleep for a substantial period of time, and the trial judge who sat up there and watched everything, and I grant you, he's not watching every second, but if he's asleep for a substantial period of time,

[00:09:03] Speaker 03:
We would expect that he's in a position to know that, and then I think the standard of review makes a difference.

[00:09:10] Speaker 01:
I think the court also would have benefited from hearing the witnesses and their descriptions of the period of times, and the judge might have said, okay, I wasn't looking at Mr. Stein during voir dire, I wasn't looking at Mr. Stein while the government is examining a witness.

[00:09:23] Speaker 01:
You know, obviously people have their opinions, but opinions can be swayed by other evidence, and in this case it was four declarations.

[00:09:29] Speaker 01:
If permissible, I'd like to reserve my last minute and 20 seconds.

[00:09:34] Speaker 04:
Very well.

[00:09:35] Speaker 04:
I guess Ms.

[00:09:38] Speaker 04:
Ahmed, is that correct?

[00:09:39] Speaker 00:
That's correct, Your Honor.

[00:09:46] Speaker 00:
Good morning, Your Honors.

[00:09:46] Speaker 00:
May it please the Court, Nadia Ahmed on behalf of the United States, the appellee here.

[00:09:51] Speaker 00:
Your Honors, we submit that the Court is correct.

[00:09:54] Speaker 00:
There is just not evidence on this record that the defense counsel was asleep for any portion that was significant, let alone the substantial portions required to meet the showing

[00:10:05] Speaker 00:
to avoid having to demonstrate prejudice.

[00:10:07] Speaker 02:
You know, counsel, I mean, going back to perhaps a literary illusion about the dog that didn't bark, you wanted a lot of extra time to get the lawyer's declaration and you didn't get it, right?

[00:10:27] Speaker 02:
There's no, it wasn't introduced, right?

[00:10:30] Speaker 00:
Your Honor, that is correct.

[00:10:32] Speaker 02:
And, you know,

[00:10:34] Speaker 02:
Putting aside whether that has evidentiary significance, I mean, it could be bad health, it could be a lot of things, but it could also be that he didn't want to talk to you or that he was not wanting to admit that he was sleeping.

[00:10:51] Speaker 00:
Your Honor, my understanding from the limited information on the record on this point is that

[00:10:57] Speaker 00:
he had indicated to government counsel who at the time was attempting to obtain that affidavit that he was, he had been hospitalized for some months.

[00:11:04] Speaker 02:
Is that in the record that the reason that that wasn't obtained was because he said medical problems, bad health?

[00:11:13] Speaker 00:
It's in the government's briefing, Your Honor, as opposed to a separate declaration or something.

[00:11:18] Speaker 03:
How soon after that effort to get his declaration did he pass away?

[00:11:23] Speaker 00:
My understanding, Your Honor, and I don't want to misspeak the record, but my understanding is that it was

[00:11:27] Speaker 00:
within months of that, that he passed, I mean, he passed away within a short period of time of that.

[00:11:32] Speaker 02:
But so the government's briefing to the district court laid that out?

[00:11:35] Speaker 00:
Yes, Your Honor.

[00:11:36] Speaker 00:
Okay.

[00:11:37] Speaker 00:
And Your Honor, I would just note that with respect to the controlling cases on this issue, Javarro and even the Fourth Circuit case, the defense relies on heavily Reagan.

[00:11:46] Speaker 00:
In those cases, the evidence in the record was substantially different outside of the evidentiary hearing where the declarations indicated or

[00:11:54] Speaker 00:
the court's own recollections indicated that the court did observe counsel sleeping and that the defendant himself submitted a declaration that counsel had been sleeping.

[00:12:03] Speaker 00:
And so those are, you would submit to your honors, regardless of the absence of defense counsel's declaration here, the case law that this court has to look at this issue substantiates that the district court's ruling on this issue was merited, that there was just not substantial portions where he was asleep.

[00:12:19] Speaker 02:
Counsel, I want to turn to an issue that your friend did not address in argument

[00:12:24] Speaker 02:
but that at least under part one of Strickland, I find troubling.

[00:12:29] Speaker 02:
And that is basically council's suggestion to the jury during both opening statement and closing argument that, yeah, maybe there was an agreement

[00:12:42] Speaker 02:
somebody helping a friend to make Calvin Robinson whole.

[00:12:48] Speaker 02:
So I have trouble seeing how any competent lawyer could make that argument in opening or closing because the first part of that argument is, yeah, you can find there was a conspiracy here.

[00:13:02] Speaker 02:
It's just maybe it was a conspiracy that he'd take his wife out to dinner and ask her to give the money back as opposed to firebombing her parents' house.

[00:13:12] Speaker 02:
But I mean, I can't understand how a competent lawyer would tell the jury, yeah, yeah, we'll try to show there was an actual agreement between the alleged conspirators here.

[00:13:24] Speaker 02:
So I didn't find the government's briefing on this on part one of Strickland convincing that, yeah, it could just be some innocent agreement.

[00:13:34] Speaker 00:
Your Honor, I think that what this defense counsel faced, what he balanced in those statements was

[00:13:42] Speaker 00:
evidence in the form of text messages between the defendant and his estranged wife and between him and her father, where he was communicating with them at the time.

[00:13:53] Speaker 00:
So there was other evidence in the record in this trial that he would have a hard lift, a heavy lift to try to distance himself from having had some involvement.

[00:14:02] Speaker 02:
No, I understand the evidence here gave the defense counsel a hard lift, but it strikes me as this is not

[00:14:09] Speaker 02:
a very sane strategy telling the jury, yeah, there might well have been an agreement between the very people who would normally, as part of that agreement, if they had one, go use violence to get the money back as opposed to, because I can't think of any possible, any evidence that would show that there was some innocent attempt to get the money.

[00:14:33] Speaker 00:
Your Honor, what it seems from the record is that

[00:14:37] Speaker 00:
He wanted the jury to understand that the defendant may have had some feeling of, I need to help my friend, but that fell far short of a criminal conspiracy, that he had fallen far short of a criminal conspiracy to commit arson.

[00:14:50] Speaker 02:
Is that not a possibility that a friend would do for a friend?

[00:14:53] Speaker 02:
I want that money back.

[00:14:55] Speaker 02:
I got to make Calvin Robinson whole.

[00:14:58] Speaker 02:
I don't like the fact that my woman stole that money from my friend.

[00:15:02] Speaker 02:
I want that money back.

[00:15:05] Speaker 02:
Again, I just can't see how that's coming up to the council required by the Sixth Amendment.

[00:15:13] Speaker 00:
Your Honor, again, I would make two responses to that.

[00:15:16] Speaker 00:
First, I would submit, Your Honor, that those statements were in the context of his repeated admonitions to the jury that, please don't fight a conspiracy here.

[00:15:25] Speaker 00:
There was not a conspiracy.

[00:15:27] Speaker 00:
You're not going to find the evidence that he joined the conspiracy.

[00:15:31] Speaker 00:
And he would repeatedly point to the absence of forensic evidence tying him to the conspiracy as well.

[00:15:36] Speaker 02:
Yeah, but these statements are basically to me saying, yeah, there was a conspiracy.

[00:15:40] Speaker 02:
There was an agreement here, but just not to firebomb things.

[00:15:44] Speaker 00:
Your Honor, I would submit that under the Ninth Circuit's own precedent, that this court has acknowledged that there are times where the defense counsel may have to acknowledge that even certain elements have been met or certain evidence is in their record.

[00:15:56] Speaker 00:
And those are strategic decisions.

[00:15:58] Speaker 00:
The court in Swanson does discuss that.

[00:16:00] Speaker 00:
But at the end of the day, what happened here falls far short of what happened in the cases like Swanson, where the defense counsel literally says, there's just, I can't overcome reasonable doubt, essentially, to the jury.

[00:16:14] Speaker 00:
In Swanson, he really abdicated his duties, and it was really clear from the record.

[00:16:17] Speaker 00:
And that's not what the defense counsel in this case did, Your Honor.

[00:16:21] Speaker 00:
He attempted.

[00:16:21] Speaker 04:
So the government's position, I gather, is this may have been inept.

[00:16:26] Speaker 04:
Not great, but he was trying to humanize

[00:16:29] Speaker 04:
this situation and it falls within a reasonable conduct under the Prong One of Strickland.

[00:16:34] Speaker 00:
Is that right?

[00:16:35] Speaker 00:
Your Honor, that is the government's position and we would submit that the record supports that because when taken in the whole of the evidence in this case, first of all, he did need to humanize his client potentially.

[00:16:46] Speaker 00:
He needed to reconcile the evidence that his client had some involvement in it.

[00:16:50] Speaker 00:
There was no avoiding that, including the fact that the duffel bag was recovered from his client's car.

[00:16:56] Speaker 00:
when his estranged wife returned home after the whole incident had happened.

[00:16:59] Speaker 00:
So there were some facts that I submit to the court.

[00:17:02] Speaker 00:
Defense counsel had to reconcile and still maintain separation from a criminal conspiracy, which is what he attempted to do in argument, both in forecasting in his opening and in his summation.

[00:17:15] Speaker 04:
I want to switch the subject a little bit.

[00:17:19] Speaker 04:
Are you arguing that Mr. Aspie's contentions that hearsay

[00:17:26] Speaker 04:
was claimed was really hearsay exceptions?

[00:17:29] Speaker 04:
Is that what your position is?

[00:17:31] Speaker 00:
Your Honor, with respect to Mr. Strickland's testimony that he had received certain indications of what to do from HB, the shadowy figure HB, Your Honor, the government did argue in its brief that these were co-conspirator statements.

[00:17:48] Speaker 00:
The evidence that the government put at trial was that there was a group of several people in the conspiracy

[00:17:54] Speaker 00:
known involvement to include Robertson, Robinson excuse me, Strickland, Osby and H.B.

[00:18:01] Speaker 00:
and maybe there were more.

[00:18:02] Speaker 00:
But those were the known conspirators that the government offered to the jury for consideration.

[00:18:06] Speaker 04:
So the statements would have been within an exception.

[00:18:09] Speaker 00:
Yes, your honor.

[00:18:12] Speaker 00:
Does the court have any further questions for me?

[00:18:14] Speaker 03:
What was the timing of the statements that would be co-conspirator statements and how would they be in furtherance of the conspiracy?

[00:18:24] Speaker 00:
So essentially, Your Honor, H.B.

[00:18:29] Speaker 00:
Strickland was testifying that H.B.

[00:18:32] Speaker 00:
was the one conveying Osby's directions to him on what to do.

[00:18:36] Speaker 00:
And so it was within the middle of the conspiracy.

[00:18:40] Speaker 00:
I submit, Your Honor, that it was before the actual arson occurred.

[00:18:44] Speaker 00:
The arson, before the October 30th arson takes place.

[00:18:49] Speaker 04:
Other questions?

[00:18:50] Speaker 04:
No.

[00:18:50] Speaker 04:
All right.

[00:18:51] Speaker 04:
Thank you.

[00:18:51] Speaker 04:
Thank you, Your Honor.

[00:18:52] Speaker 04:
Sean, do you have some rebuttal time?

[00:18:54] Speaker 01:
I'd like to address the Batson issue because it's one that's troubled me from the first time I read the transcript.

[00:19:00] Speaker 01:
It was conceded by Council Stein that he struck the last two African-American jurors from the panel.

[00:19:06] Speaker 01:
based on their race.

[00:19:09] Speaker 03:
What he admits is he did it based on a perception that they'd be sympathetic.

[00:19:15] Speaker 03:
You're speculating that his belief that they'd be sympathetic was based on race, but I don't read it that he admitted in terms that it was based on race.

[00:19:26] Speaker 01:
Well, they were the only two African American jurors and the victim is African American and he said that he thought that those two jurors would have sympathy for the victim and there's nothing.

[00:19:35] Speaker 02:
Didn't one of the jurors, I might have the number wrong, was it juror number three?

[00:19:39] Speaker 02:
But wasn't there one of the jurors who actually had written that they would be sympathetic?

[00:19:46] Speaker 01:
To defendants because they don't think they get a fair shake I believe that to be accurate But in this instance it was to african-american jurors And there's nothing in the transcript that would reflect that these jurors had some sympathy toward the victim It was entirely accepts except that written statement in that wasn't one of these jurors though, okay?

[00:20:03] Speaker 01:
That's my recollection is that was not one of these two guys and I would just end by quoting Smith Klein that says that

[00:20:12] Speaker 01:
At stake, the court explained, were not only the rights of criminal defendants, but also the individual who is excluded from participating in the jury service based on his race.

[00:20:21] Speaker 01:
So here, it's a violation of not only the defendant's constitutional rights, but the constitutional rights of the juror having been stricken based on race.

[00:20:29] Speaker 01:
There cannot be a strategic reason for striking someone based on race.

[00:20:32] Speaker 04:
Thank you, counsel.

[00:20:34] Speaker 04:
Both counsel.

[00:20:35] Speaker 04:
The case of United States versus OSPE is submitted.