[00:00:01] Speaker 04:
Good morning.

[00:00:04] Speaker 04:
I am Steve Hormel.

[00:00:05] Speaker 04:
I represent Mr. Bachman.

[00:00:08] Speaker 04:
This is a 2255 appeal.

[00:00:10] Speaker 04:
There is a certified issue based on McCoy versus Louisiana, and there's a uncertified issue that this court ordered the government to reply to.

[00:00:21] Speaker 04:
As far as the first issue, the certified issue on the McCoy versus Louisiana, Mr. Bachman filed a 2255 alleging that he did not approve of or consent and actually objected to

[00:00:41] Speaker 04:
His trial counsel's admission of guilt both during closing argument and opening statement in other words both defense counsel had two defense counsel the first defense counsel and opening statement admitted as part of their trial strategy that

[00:00:58] Speaker 04:
Mr. Bachman committed the crime of felon in possession of a firearm and in closing argument, the second defense counsel went quite a bit further but did the same thing and that was

[00:01:13] Speaker 04:
You know, admit to that he was guilty of the second count of a felon in possession of a firearm.

[00:01:20] Speaker 04:
This case, as I pointed out in my reply brief, falls somewhere in between the McCoy case and Florida versus Nixon.

[00:01:30] Speaker 04:
And in Florida versus Nixon, the counsel consulted with the client, said what their strategy was, and there was neither an approval nor an objection to that strategy.

[00:01:40] Speaker 04:
In McCoy, there was constant, I believe, objections by the defendant in open court relating to the strategy here.

[00:01:50] Speaker 04:
Mr. Bachman is claiming that he objected to his counsel's strategy during what looked like a trial strategy consultation.

[00:02:03] Speaker 02:
And at this stage of the case, we don't have any evidence, but that's what he says.

[00:02:07] Speaker 04:
That's what he says, and that's why I think there's a need for an evidentiary hearing, really.

[00:02:11] Speaker 00:
Well, he also filed the initial motion pro se.

[00:02:16] Speaker 00:
So I think one of the fundamental questions that we're having to ask ourselves in this case is, was the summary dismissal appropriate under the Hendricks standard?

[00:02:33] Speaker 00:
And, you know, that's why... Given this situation, a question of first impression.

[00:02:41] Speaker 04:
I agree with that because there is... I didn't say... I didn't say... I know that, but I agree that that's the issue.

[00:02:47] Speaker 04:
Excuse me.

[00:02:51] Speaker 04:
Okay.

[00:02:51] Speaker 04:
I believe there is a need for an evidentiary hearing.

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And I think the Blackledge v. Allison case that goes way back in the Supreme Court sort of hints at that.

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And that is, you know, when you have a pro se defendant alleging some

[00:03:03] Speaker 04:
improper conduct on the attorneys that, you know, just the pleadings themselves and even declarations or affidavits don't really cover the matter that there has to be live testimony so we can hear from defense counsel what they perceive transpired during those.

[00:03:20] Speaker 02:
There are two steps here.

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Number one is evidentiary and the other one is what's the law.

[00:03:24] Speaker 02:
Let's assume that we have an evidentiary finding from the district court.

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that in fact he told the lawyer, listen, I don't want to concede guilt on that one.

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So we know that that's what happened.

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Didn't happen in open court.

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Then the next question is, is this a McCoy case or is this a Florida versus Nixon case?

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Now, should we decide that?

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What if we were to say, okay, we will assume

[00:03:48] Speaker 02:
that the evidentiary record will show that he specifically told the lawyer do not concede that.

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Can we decide that or do we need briefing down below and so on in order to have it come back up again?

[00:04:02] Speaker 04:
If the conclusion is that he ordered or objected to his trial counsel's strategy, I believe a McCoy issue can be resolved.

[00:04:15] Speaker 02:
by us without him from the district court?

[00:04:18] Speaker 04:
I would think so.

[00:04:19] Speaker 04:
Because the district court went one step further and said as a matter of law, this is the way I read it, said as a matter of law, since he employed the same strategy at sentencing the McCoy issue, he kind of waived the McCoy issue.

[00:04:31] Speaker 04:
That's what the district court held in her.

[00:04:34] Speaker 02:
Yeah, what if I disagree with that?

[00:04:36] Speaker 02:
At this point, his lawyer has already conceded, contrary to his instruction.

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So he's kind of stuck with the concession.

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So he's trying to make the best of it.

[00:04:45] Speaker 04:
he has stuck, that's exactly right, that was how I addressed it in my reply brief.

[00:04:50] Speaker 02:
I understand that point, but we still have the problem of whether this is McCoy or not, because McCoy, boy, the facts are pretty egregious in favor of the defendant.

[00:04:58] Speaker 02:
I mean, open court, he's saying don't do it, don't do it, don't do it, and the lawyer does it anyway.

[00:05:03] Speaker 02:
Here, this isn't, you know, it's off to one side.

[00:05:06] Speaker 02:
I take it as, for the purpose of the question, that it's true

[00:05:09] Speaker 02:
But it's not an open court.

[00:05:11] Speaker 04:
It's a criminal defendant.

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Most in my experience, most of them are not going to interrupt the court proceedings.

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This client and McCoy did.

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They're going to respect what's going on in the court.

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They may object to their attorneys, but they're a bit give respect to the attorneys and what they're doing.

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And I think putting the onus on the defendant on a McCoy issue, I think is the wrong direction.

[00:05:33] Speaker 01:
But what about the decision whether to testify, whether the defendant should testify in his own defense is committed to the defendant, not to counsel.

[00:05:43] Speaker 01:
He has a right to do that if he wants to.

[00:05:44] Speaker 01:
But we said in Pino Noriega that if he doesn't say something to the court or ask for new counsel or do something to communicate that he disagrees with counsel's decision on that, then the claim is waived.

[00:05:59] Speaker 01:
So why would this be different?

[00:06:01] Speaker 04:
very different because the defendant's not objecting to the entire presentation of the defense, only one area of the defense.

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In this case, when a defendant exercises his right to autonomy, he's objecting to the entire process in which the trial was conducted.

[00:06:19] Speaker 04:
that's not what's happening when the defendant says he was deprived of his right to testify but he's not he's not objecting to the entire proceeding in fact his testimony may have been hurt not helpful you know not or could have been impeached there's a lot of different scenarios in in depriving the right to testify or a counsel

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And I think that's why it's structural under McCoy.

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And I think that's what's different under the Weaver case that was cited by.

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the government in their response brief to the United States Court in Weaver.

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I think this is a structural error that goes to the entire trial proceeding, particularly when it involves a concession of guilt when the defendant objects.

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I'd like to get to the uncertified issue.

[00:07:20] Speaker 00:
The lab report.

[00:07:21] Speaker 04:
Yeah, the lab report.

[00:07:24] Speaker 04:
So when I got the

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government's response, I thought, oh, well, that's interesting.

[00:07:31] Speaker 04:
Because I, you know, Mr. Bachman saying that it was interesting.

[00:07:34] Speaker 00:
They didn't have it.

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But I think you have to look at it real closely.

[00:07:38] Speaker 00:
Again, I just isn't it something the district court should have had in front of her before she issued a summary disposition under rule for

[00:07:48] Speaker 04:
Yes, especially considering the specific allegations that were, I thought, fairly well detailed in Mr. Bachman's allegations at page 68 in the N2ER as to what he was really saying.

[00:08:05] Speaker 04:
because defense counsel, I don't know if you recognize that the lab report was generated in May of 2019, not disclosed until December 6, 2019, and trial was December 9, 2019.

[00:08:21] Speaker 04:
So it wasn't disclosed until the weekend before the Monday of the trial that was going to start.

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So when Mr. Bachman is outlining in his allegations,

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He may be well right that he didn't see the lab reports that were not given to his defense counsel until the Friday before the Monday trial.

[00:08:44] Speaker 04:
Because he then says a week before trial, his counsel informed him that the AUSA sent the envelopes

[00:08:53] Speaker 04:
that have the plastic baggies in them to the lab report to be tested, and that United States Postal Service envelope came back with somebody else's.

[00:09:04] Speaker 04:
Well, that's different than what was disclosed by the government in their supplemental, in their supplement.

[00:09:11] Speaker 04:
That was simply the lab report for the baggies.

[00:09:14] Speaker 04:
Mr. Bachman believes there was a request for testing done on the big envelope that the baggies were in.

[00:09:22] Speaker 04:
So I think there is a need for an evidentiary hearing to ferret this all out.

[00:09:27] Speaker 04:
So I would ask the court to grant the McCoy issue and or send it back for an evidentiary hearing and grant the uncertified issue and send it back for an evidentiary hearing.

[00:09:43] Speaker 01:
Can you just sort of sketch out why the lab report might be material here?

[00:09:48] Speaker 04:
Well, there's two lab reports I think we're talking about.

[00:09:50] Speaker 04:
The one that was disclosed the Friday before the Monday trial.

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And of course, in my opinion, if you have a lab report where nobody's fingerprints are, it's still helpful to the defense regardless.

[00:10:02] Speaker 04:
And it also brings up, and I didn't reference this case yet, but it also brings up the case of United States versus Miller.

[00:10:13] Speaker 04:
where this is a tardy disclosure.

[00:10:17] Speaker 04:
It's not a nondisclosure.

[00:10:18] Speaker 04:
It's a tardy disclosure.

[00:10:20] Speaker 04:
There's a May 19, May whatever, 2019 lab report that's not given until three days before trial in December.

[00:10:28] Speaker 04:
And Miller versus United States, 529 Fed 2nd, 1125 says, when there's a delay,

[00:10:37] Speaker 04:
in disclosure.

[00:10:38] Speaker 04:
It's not necessarily a Brady violation, but the question is whether the lateness of the disclosure so prejudiced the appellant's preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.

[00:10:55] Speaker 04:
defense counsel's receipt of the of the lab report Just three days and a weekend prior to the Monday trial to me deprived.

[00:11:05] Speaker 04:
Mr Bachman of his right to be to a guaranteed fair trial constitutionally fair trial so I think it really needs to be back and briefed in front of the district court on those issues All right.

[00:11:19] Speaker 00:
Thank you counsel

[00:11:33] Speaker 03:
May it please the court, Tim DeTarca of the United States, of the District of Montana on behalf of the United States.

[00:11:39] Speaker 03:
I want to bring up two points as to address Judge Wardlaw's issue about why an evidentiary hearing was not necessary on this point.

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The first is, it's critical what was said at sentencing, and this is at supplemental excerpts of the record, pages 44 and 45, was not simply that

[00:11:59] Speaker 03:
as Judge Fletcher indicated, not simply as well.

[00:12:03] Speaker 03:
I'm stuck with this guilty plea now, or with this concession of guilt now, and so I'm going to make the best of it.

[00:12:16] Speaker 03:
He actually told the court

[00:12:18] Speaker 03:
that he asked for early acceptance of accountability, that he be treated as someone who had an early acceptance of accountability because he, and remember, there isn't a not guilty plea here.

[00:12:34] Speaker 03:
The only thing he could have been talking about at that point was the adoption of.

[00:12:39] Speaker 02:
Why is that inconsistent with his trying to make the best of his counsel's choice to act contrary to his instructions earlier?

[00:12:48] Speaker 03:
Because you can't say when it's convenient for you, say, I have always taken accountability for my guilt, and then at the same time turn around and say, I was maintaining my innocence.

[00:13:08] Speaker 02:
But of course, but he might not have been telling the truth when he's trying to make the best of it.

[00:13:13] Speaker 02:
That doesn't mean that he didn't say that earlier.

[00:13:18] Speaker 03:
And that goes to my second point.

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That is possible.

[00:13:21] Speaker 03:
It's possible he was not telling the truth one of those two times.

[00:13:25] Speaker 03:
Now, we know that the court, when things do contradict the record, the court can credit what he said initially and assume that he was being honest then and he's not being honest on collateral review.

[00:13:41] Speaker 03:
But importantly, I want to raise the second point here, which is, and this I would recommend the court look at excerpts of the record, page 69.

[00:13:50] Speaker 03:
Even on collateral review, he states, I truthfully told law enforcement that I had a gun.

[00:13:59] Speaker 03:
Exactly the same phrase that he is claiming that he told the defense counsel not to say at

[00:14:12] Speaker 03:
to concede a trial.

[00:14:14] Speaker 03:
So that is sharply different than McCoy, where McCoy maintained his innocence.

[00:14:19] Speaker 03:
However incredibly, he maintained the fact that he was out of state.

[00:14:25] Speaker 03:
He didn't commit the murders.

[00:14:27] Speaker 03:
The murders were committed by a law enforcement conspiracy.

[00:14:32] Speaker 03:
Here, Bauman is saying, really from start to finish, saying, I

[00:14:41] Speaker 03:
I had a gun.

[00:14:42] Speaker 03:
I knew I had a gun.

[00:14:44] Speaker 03:
He admitted that his gun possession was wrongful.

[00:14:47] Speaker 00:
But he doesn't.

[00:14:48] Speaker 00:
So he didn't admit all the elements that the government must prove to prove that he was a felon in possession, i.e., that he was a prohibited person.

[00:15:02] Speaker 00:
And the government has a burden of proving that.

[00:15:04] Speaker 00:
What he says is he said, I told him I had a gun, and I told him I had a gun.

[00:15:09] Speaker 00:
I don't know if that's sentencing or you see.

[00:15:13] Speaker 03:
Well, at sentencing, he actually says, I had a gun, and I knew I had no business having it.

[00:15:20] Speaker 03:
So that element of the Rahaf element, the element that he knew he was a member of that class.

[00:15:30] Speaker 00:
Is this pre or post Rahaf?

[00:15:32] Speaker 03:
I believe it's post.

[00:15:33] Speaker 03:
I'm pretty sure.

[00:15:38] Speaker 03:
But he did admit that he knew he was that.

[00:15:44] Speaker 03:
And there is no question about that factually.

[00:15:46] Speaker 03:
He had several convictions.

[00:15:47] Speaker 03:
I believe he had seven convictions, one of which he was sentenced to 10 years.

[00:15:52] Speaker 03:
So there wouldn't be any

[00:15:54] Speaker 00:
Yeah, the problem, counsel, that I'm struggling with in this case, and we have another one later this week from the same judge, is that we're sitting here debating these factual things, and my question is, you know, the rule four standard

[00:16:11] Speaker 00:
under Hendrick's summary dismissal as appropriate only where the allegations are vague or conclusory, palpably, incredible, or patently frivolous or false.

[00:16:21] Speaker 00:
And that's our standard.

[00:16:23] Speaker 00:
And I guess the fact we're having this debate means that maybe she should have gone a little further in this process.

[00:16:31] Speaker 03:
So two responses to that, Your Honor.

[00:16:34] Speaker 03:
The first is there is just a conclusory statement here, right?

[00:16:38] Speaker 03:
The statement is I told,

[00:16:41] Speaker 03:
I told counsel not, I didn't want to admit guilt.

[00:16:45] Speaker 03:
But again, I would say that that conclusory statement is contrary to what he told the court saying, I took responsibility, accountability early, and I should get credit for that.

[00:16:57] Speaker 03:
So the court can dismiss that conclusory statement.

[00:17:00] Speaker 03:
The other important point here is the court did not address

[00:17:05] Speaker 03:
Prejudice in this case and this is ineffective assistance of counsel there are both the the Deficient performance prong and the prejudice prong well, but if but if it is a McCoy case.

[00:17:19] Speaker 03:
I mean it's structural Well two things on that your honor first Structural letter doesn't mean you don't have to prove that

[00:17:29] Speaker 03:
prejudice when you raise it on collateral review in an ineffective assistance of counsel claim.

[00:17:38] Speaker 02:
But isn't it a freestanding McCoy claim?

[00:17:41] Speaker 03:
No.

[00:17:42] Speaker 03:
And this is important.

[00:17:44] Speaker 03:
There was not a freestanding McCoy claim.

[00:17:46] Speaker 03:
If he did raise one, it would have been procedurally defaulted.

[00:17:50] Speaker 03:
What he raised was ineffective assistance of counsel.

[00:17:52] Speaker 03:
That is clear, at excerpts of the record, page 50 as to what he

[00:17:57] Speaker 03:
What he actually raised is that counsel was ineffective because he did not honor my request.

[00:18:08] Speaker 03:
That is very different than a claim that the court denied him his right to maintain his innocence.

[00:18:18] Speaker 03:
And as Judge Miller raises the issue of Pino Noriega, this difference is critically important because when a McCoy claim is not raised, there's a real finality issue here.

[00:18:40] Speaker 03:
If a defendant stays silent during the conviction, in this case, sentencing,

[00:18:49] Speaker 03:
goes forward with defense counsel's strategy, and then when that doesn't turn out his way, turns around and asks for a new trial, you run a real risk here of the defense getting, eating his cake and having it too.

[00:19:11] Speaker 03:
Does that make sense, Your Honor?

[00:19:14] Speaker 01:
To go back to the point that Judge Wardlaw raised a minute ago, it's a little bit odd, isn't it, that we have a rule for dismissal followed by a grant of a certificate of appealability?

[00:19:24] Speaker 01:
I mean, maybe they're not literally contradictory, but they're in considerable tension with each other, aren't they?

[00:19:31] Speaker 03:
There's no question, Your Honor, and to be candid, from the government's perspective, we ask the Court to reconsider

[00:19:41] Speaker 03:
the rule for not having addressed the prejudice issue and saying that the court could consider the issue of prejudice, and that would definitively resolve the issue.

[00:19:52] Speaker 03:
Now, this court can affirm on any ground supported by the record.

[00:19:56] Speaker 03:
So the court can affirm the rule for dismissal based on the fact that there is no prejudice, even though she didn't do the prejudice.

[00:20:07] Speaker 03:
The judge below didn't do the prejudice analysis.

[00:20:13] Speaker 03:
I do want to address the issue of the uncertified question.

[00:20:21] Speaker 03:
There is no issue with there being two lab reports.

[00:20:24] Speaker 03:
I'll just point to our exhibit three.

[00:20:27] Speaker 03:
The things that were tested were heat seal freezer bags, pieces of plastic, and the piece of green cardboard, which would have been the piece of the mailing package.

[00:20:38] Speaker 00:
Is that the envelope?

[00:20:40] Speaker 00:
Yeah.

[00:20:40] Speaker 00:
And fingerprints on that were all inclusive?

[00:20:44] Speaker 03:
No latent print suitable for identification were developed.

[00:20:47] Speaker 00:
And was this before the district court judge, when she dismissed this case under Rule 4?

[00:20:53] Speaker 03:
This piece of evidence was not

[00:20:56] Speaker 03:
but again if you read excerpts of the record page 68 even what Bauman alleges was that he was that defense counsel had the lab report and defense counsel elected

[00:21:09] Speaker 03:
not to submit it, that is absolutely sufficient to say.

[00:21:15] Speaker 03:
For that one, I am confident the district court did its job on.

[00:21:19] Speaker 03:
That is sufficient for the district court to say this was a decision that was consigned to the defense counsel.

[00:21:28] Speaker 03:
The defense counsel did a strategy

[00:21:31] Speaker 00:
and that is not in effect assistance.

[00:21:50] Speaker 00:
I mean, it's a long opinion by the, I mean, if you're going to, if you dismiss, at least when I was a trial court judge, a district court judge, I mean, we didn't do that.

[00:22:02] Speaker 00:
We didn't dismiss those and write a 14 page thing and grant a COA.

[00:22:07] Speaker 00:
I mean, if it was, if it was that frivolous as to warrant dismissal, we just dismissed it.

[00:22:15] Speaker 03:
There's no question the judge made this decision on rule four without asking an answer for the United States.

[00:22:23] Speaker 03:
Like I say, we did file a motion for reconsideration on that and did put the information about prejudice in front of the court as well.

[00:22:34] Speaker 03:
She elected not to reconsider it, but this court has that in front of it, and I think the

[00:22:45] Speaker 03:
The most direct way for this court to resolve it would be to say that there is no prejudice here.

[00:22:54] Speaker 03:
No reasonable jurist could disagree about that.

[00:22:57] Speaker 02:
You're just saying it's an unnecessary and pointless step.

[00:23:00] Speaker 02:
Exactly.

[00:23:01] Speaker 02:
Because the answer is so obvious.

[00:23:03] Speaker 02:
Exactly.

[00:23:04] Speaker 03:
Unless there's any further questions.

[00:23:07] Speaker 03:
Thank you, Your Honor.

[00:23:08] Speaker 00:
OK.

[00:23:08] Speaker 00:
Mr. Hormel, I'll give you one minute to respond to the new points.

[00:23:15] Speaker 04:
First on the prejudice angle that the government is urging the court to take McCoy versus Louisiana 138 Supreme Court at pages 1510 1511 says because the client's autonomy and counsel's competence is an issue.

[00:23:31] Speaker 04:
We do not apply our ineffective assistance of counseled jurisprudence.

[00:23:36] Speaker 04:
I think that's just another way of saying that this is such a structural error and denies the defendant of the right to a fair to you know to choose his strata his defense that the prejudice is a structural issue in the in the prejudice prong of

[00:23:53] Speaker 04:
ineffective assistance doesn't apply.

[00:23:55] Speaker 04:
Secondly, as far as the uncertified issue is concerned, I think what Mr. Bachman was saying, it sounds like Mr. Bachman wasn't aware that his trial counsel may have received the lab report three days over prior to a weekend before his Monday trial.

[00:24:12] Speaker 04:
So there still is issues that have to be discussed

[00:24:15] Speaker 04:
with trial counsel and the strategy.

[00:24:17] Speaker 04:
And the other thing is Mr. Bachman alleges that there is another request for a lab report on the envelope containing the baggies that the government referenced.

[00:24:27] Speaker 04:
So there are factual issues relevant to the case that I believe needs to be.

[00:24:32] Speaker 02:
Disgusting.

[00:24:33] Speaker 02:
Tell me with the first point you made.

[00:24:35] Speaker 02:
You're trying to get out from under the requirement in an IAC claim of showing prejudice.

[00:24:40] Speaker 02:
You're saying that because it's structural error that even though it's IAC, you don't have to show prejudice?

[00:24:47] Speaker 04:
If you show counsel is deficient, I think you can look to other case law to determine what the prejudice.

[00:24:52] Speaker 04:
And what I mean by that is a good example is Roe versus Flores Ortega.

[00:24:58] Speaker 04:
I cited it in my reply brief.

[00:25:00] Speaker 04:
I don't have the

[00:25:01] Speaker 04:
with me right now, but that was where they said a defendant who tells his client to file an appeal, it's unreasonable and is automatic reversal and the client gets the appeal.

[00:25:14] Speaker 04:
This is almost identically the same situation.

[00:25:17] Speaker 04:
This is where the defendant's saying, don't take that strategy, the counsel does, and he loses his complete right to a fair trial on that issue, so.

[00:25:26] Speaker 02:
So you're saying with respect to prejudice,

[00:25:28] Speaker 02:
Whether it's a direct appeal on a McCoy issue or a McCoy issue embedded in IAC, in neither case do you need to show prejudice?

[00:25:35] Speaker 04:
I think prejudice is shown in a McCoy case that's brought on an IAC claim.

[00:25:43] Speaker 02:
How is it shown?

[00:25:43] Speaker 02:
What do you mean then by prejudice?

[00:25:45] Speaker 04:
The prejudice is he lost his right to autonomy and to choose his defense on that particular account.

[00:25:52] Speaker 02:
But you don't count as prejudice whether he would have won or lost.

[00:25:56] Speaker 04:
No.

[00:25:57] Speaker 04:
I don't believe that.

[00:25:58] Speaker 04:
I mean, McCoy tends to say that, and I believe Roe versus Ortega-Flores supports that.

[00:26:05] Speaker 00:
That's the argument.

[00:26:06] Speaker 00:
Okay.

[00:26:06] Speaker 04:
Thank you.

[00:26:07] Speaker 00:
All right.

[00:26:08] Speaker 00:
Thank you, counsel.

[00:26:09] Speaker 00:
U.S.

[00:26:09] Speaker 00:
versus Bauman will be submitted.