[00:00:36] Speaker 00:
is under federal custody.

[00:01:14] Speaker 00:
I understand your honors, but I think the Disentitlement Doctrine is a harsh and discretionary sanction, and it's really used to protect the appellate process.

[00:01:25] Speaker 02:
But where is the abuse of discretion then?

[00:01:28] Speaker 02:
The abuse of discretion?

[00:01:29] Speaker 02:
Yes.

[00:01:31] Speaker 02:
Why is it an abuse of discretion?

[00:01:49] Speaker 00:
gave her a 128 grace period to surrender, which she did.

[00:01:53] Speaker 00:
There's no question about her good faith effort to surrender to the jurisdiction of this court.

[00:02:00] Speaker 00:
And so it was reinstated.

[00:02:02] Speaker 00:
And then once it was reinstated, the motions panel gave the government a second chance to develop its argument before the merits panel.

[00:02:11] Speaker 00:
I see, I see.

[00:02:12] Speaker 00:
And in this posture, the government in its answering brief, has that actually raised any new arguments to support that?

[00:02:20] Speaker 00:
that the entitlement doctrine should be applied

[00:02:28] Speaker 04:
in deterrence, one of the goals of the doctrine.

[00:02:32] Speaker 00:
It is, but.

[00:02:32] Speaker 04:
To deter people from escaping, absconding.

[00:02:36] Speaker 00:
Yes, Your Honor.

[00:02:37] Speaker 00:
But I also know that, Your Honor is well aware, that in this post-Dagan world, after the Supreme Court's decision in Dagan, that deterrence and the other one, dignity to this Court, that those

[00:02:56] Speaker 00:
In this very thoughtful opinion of Katz, it looked at deterrence and it looked at the dignity of the courts.

[00:03:04] Speaker 00:
This is such a harsh sanction and society benefits from the review of meritorious claims that we will decline, we will decline to exercise this sanction when the person is no longer a fugitive.

[00:03:20] Speaker 04:
But Katz is a little distinguishable in it because Katz applied the doctrine for what

[00:03:35] Speaker 04:
And that was after he came back, so there wasn't a reason to apply the doctrine at that point.

[00:04:05] Speaker 04:
We do.

[00:04:08] Speaker 00:
And that's the hyper-technical reading of Ortega Rodriguez that we are contesting, because it is not justified under the rationales.

[00:04:16] Speaker 00:
Their rationales is only deterrence and the dignity of the court, and we're saying that is not sufficient.

[00:04:28] Speaker 00:
That comes after Ortega Rodriguez.

[00:04:30] Speaker 00:
And that also looks at Katz.

[00:04:33] Speaker 00:
It does not say that Katz was overruled.

[00:04:35] Speaker 00:
It distinguishes it and says that, sure, the person was a former is now no longer a fugitive.

[00:04:44] Speaker 00:
But you have to look at other overriding concerns.

[00:04:48] Speaker 00:
How, for example, prejudice to the case.

[00:04:55] Speaker 00:
affect the appellate process because Disentitlement Doctrine is about protecting the appellate process.

[00:05:01] Speaker 00:
That's the problem here.

[00:05:03] Speaker 00:
This is the government's motion.

[00:05:05] Speaker 00:
The government has the burden of proof of showing, making some showing of how this affected the appellate process, and it doesn't.

[00:05:13] Speaker 04:
Aren't there some other cases, a couple cases in other circuits that have applied the doctrine, even after the fugitive has been returned?

[00:05:22] Speaker 00:
But in this circuit, if you look

[00:05:26] Speaker 00:
or Rodriguez, it does not say that Kath was overruled.

[00:05:29] Speaker 00:
It does say that you need to look at over other concerns, such as prejudice.

[00:05:33] Speaker 00:
But in this case, the government makes no showing of prejudice, no showing of frustration, no showing of delay.

[00:05:40] Speaker 00:
It doesn't make any of these arguments.

[00:05:42] Speaker 00:
All it's saying is that, essentially, she was a fugitive at the time she filed her notice of appeal.

[00:05:47] Speaker 00:
And for that reason, because of deterrence, because of deterrence and dignity of the court, that should be enough to disentitle her.

[00:05:58] Speaker 00:
That goes too far.

[00:05:59] Speaker 00:
That's not enough.

[00:06:00] Speaker 00:
You need something more.

[00:06:01] Speaker 00:
And we're saying that the government has not shown that something more.

[00:06:33] Speaker 04:
first place.

[00:06:34] Speaker 04:
Yes, your honor, that second is not quite right up ahead.

[00:06:38] Speaker 04:
I went tails, you lose kind of situation that second.

[00:06:42] Speaker 00:
But her second opportunity came because the court issued that order that said you have 120 days to return.

[00:06:50] Speaker 04:
That was already been a fugitive.

[00:06:53] Speaker 04:
She never intended to want to return in the first place.

[00:06:56] Speaker 00:
That opportunity came after she was captured, so the court was aware.

[00:07:04] Speaker 04:
apprehended, you might say, oh, I'm sorry, I didn't mean to do that.

[00:07:09] Speaker 04:
But sometimes that's a little too late, isn't it?

[00:07:12] Speaker 00:
Your Honor, I only have five minutes left.

[00:07:14] Speaker 00:
I really need to address the merits of the claim if that's OK.

[00:07:19] Speaker 00:
OK.

[00:07:19] Speaker 00:
The sophisticated means enhancement was amended in 2015.

[00:07:23] Speaker 00:
Under the old rule, if one person got it, everyone got it.

[00:07:28] Speaker 00:
Under the amended rule, only the people responsible for the sophistication of the crime got it.

[00:07:34] Speaker 00:
The judge applied the old rule.

[00:07:37] Speaker 00:
Her husband got it.

[00:07:38] Speaker 00:
She got it.

[00:07:39] Speaker 00:
The judge didn't say anything about her conduct being sophisticated.

[00:07:43] Speaker 00:
What he said about her was, quote, she wasn't perhaps essential.

[00:07:47] Speaker 00:
That's ER 33.

[00:07:48] Speaker 00:
The judge didn't really know what she did.

[00:07:52] Speaker 00:
Quote, I don't exactly know how she measured up in terms of actions within the fraud.

[00:07:56] Speaker 00:
That's ER 42.

[00:07:58] Speaker 00:
This is a court of review, not a first view, where the district court applied the wrong rule to determine her guidelines range.

[00:08:05] Speaker 00:
This court sends it back.

[00:08:07] Speaker 00:
She was the one caught with a false credit card, wasn't she?

[00:08:10] Speaker 00:
That's correct.

[00:08:13] Speaker 00:
Yes.

[00:08:14] Speaker 00:
Which we argue is not sophisticated conduct.

[00:08:17] Speaker 00:
Possessing a credit card.

[00:08:20] Speaker 00:
The government's characterization also of the record isn't correct.

[00:08:24] Speaker 00:
It tells this court that Ms.

[00:08:25] Speaker 00:
Tarabellian controlled a fraudulent bank account in her father's deceased name and cites to a misstatement by a witness on direct, by its witness on direct examination.

[00:08:36] Speaker 00:
This is on page 13 and 30 of its answering brief where it cites SER 263.

[00:08:42] Speaker 00:
On cross examination, that witness retracted that statement.

[00:08:47] Speaker 00:
That was my testimony, or was it on a chart?

[00:08:51] Speaker 00:
Why don't I just ask you to clarify now, the signer on this account for Mod Interiors is not Mary Terry Bellion, correct?

[00:08:57] Speaker 00:
Yes, that's correct.

[00:08:59] Speaker 00:
That's on SER-326.

[00:09:46] Speaker 03:
counsel, the reason she moved to withdraw her plea, which gives us a different standard than if it was just a motion to withdraw her plea.

[00:09:56] Speaker 03:
Why was it an ineffective assist in the counsel?

[00:09:59] Speaker 03:
You have a lady who has never been in the criminal justice system before, and I've been doing this 53 years, standing up

[00:10:17] Speaker 03:
You can trust me.

[00:10:21] Speaker 03:
And she waves a conflict in open court.

[00:10:25] Speaker 03:
In California these days, that would never be sufficient.

[00:10:29] Speaker 03:
They would ask you to at least give you the right to talk to another attorney.

[00:10:35] Speaker 03:
They would give you at least a right.

[00:10:38] Speaker 03:
They would appoint another attorney in most courts I've been in, and I've been in them all here in California.

[00:10:44] Speaker 03:
Why is this insufficient?

[00:10:49] Speaker 03:
Like I said, I've been doing criminal law for 53 years.

[00:10:52] Speaker 03:
You take a new person coming into this court, talking to a federal judge with her attorney next to her, not sophisticated, and he's saying, I'll do it for you.

[00:11:10] Speaker 03:
If anything we've learned that attorneys and clients fall out, we've learned that on a national stage,

[00:11:21] Speaker 03:
when the attorney's interest is at odds with the client's interest.

[00:11:28] Speaker 04:
Well, the district court went into this though with her and the attorney, right?

[00:11:31] Speaker 04:
It isn't as if the court does it fine.

[00:11:34] Speaker 04:
They went to the decision that it was a valid waiver of any potential conflict.

[00:11:42] Speaker 03:
minutes and and they didn't go into it to say let's think about this going have some time to deal with this they went into it three minutes and I don't believe it's a sufficient waiver and I believe that anyone else facing a criminal court for the first time

[00:12:09] Speaker 03:
But let's add to that, because that's only one little thing.

[00:12:13] Speaker 03:
Then we have this same attorney who makes a motion to continue this case.

[00:12:20] Speaker 03:
Why?

[00:12:20] Speaker 03:
Because he's unprepared, five days before she's supposed to start trial.

[00:12:25] Speaker 03:
What else do we have?

[00:12:27] Speaker 03:
We have this lady who's friendly with this attorney, texting him, I haven't seen any discovery.

[00:12:34] Speaker 03:
You haven't come by and shown me any discovery.

[00:12:38] Speaker 03:
That's all on the record.

[00:12:39] Speaker 03:
These are texts she did.

[00:12:42] Speaker 03:
Sorry, that was the wrong word.

[00:12:43] Speaker 03:
The district court looked at that aspect, didn't it?

[00:12:46] Speaker 03:
Absolutely.

[00:12:47] Speaker 03:
But the point is, you had that, is this attorney effective to her needs?

[00:12:54] Speaker 03:
You may have looked at him individually, but collectively, it's unbelievable what this lady, we all know he got the plea agreement the day before.

[00:13:12] Speaker 03:
She says he didn't.

[00:13:14] Speaker 03:
Let's add to that the next.

[00:13:16] Speaker ?:
Well, hold on.

[00:13:17] Speaker 03:
When they went through the plea agreement, the judge went through that with her, right?

[00:13:22] Speaker 03:
Absolutely.

[00:13:23] Speaker 03:
And she said, I didn't do those things.

[00:13:26] Speaker 03:
And he said, I mean, what's knowing and intelligent, since we're doing this day noble?

[00:13:33] Speaker 03:
What's knowing and intelligent to all of us?

[00:13:36] Speaker 03:
Where a lady says, I didn't do loans 11 through 20 or 9 through 20.

[00:13:45] Speaker 03:
But she said, I didn't take part in any of those.

[00:13:51] Speaker 04:
Well, as a conspirator, you don't have to personally take part.

[00:13:54] Speaker 04:
You just have to be aware of what your co-conspirators are doing.

[00:13:59] Speaker 03:
Your honor, you may be right about the law, but the question becomes, did she know only and intelligently

[00:14:08] Speaker 03:
agree to plead guilty as a co-conspirator of all these items when her lawyer says, do this or the judge is going to kill you.

[00:14:19] Speaker 03:
You know, you can add each one of these.

[00:14:22] Speaker 03:
I've lost each one of these separately in court for 53 years.

[00:14:27] Speaker 03:
I've won some.

[00:14:40] Speaker 03:
He was going to kill her.

[00:14:41] Speaker 03:
I apologize, Ron.

[00:14:42] Speaker 03:
I didn't mean it.

[00:14:44] Speaker 03:
He says, a judge is going to kill you.

[00:14:47] Speaker 03:
That's a quote on the record.

[00:14:49] Speaker 04:
Yeah, yeah.

[00:14:50] Speaker 04:
I mean, he obviously didn't mean that literally.

[00:14:51] Speaker 04:
He just meant the judge is going to throw the book at you if you don't kill him.

[00:14:54] Speaker 03:
You know, if we look at this from a practical standpoint, the attorney should have had someone else advise her as to the conflict.

[00:15:03] Speaker 03:
He wasn't prepared for trial.

[00:15:06] Speaker 03:
He got the plea agreement the last day and never gone over with her beforehand.

[00:15:10] Speaker 03:
We all know that because she texted him.

[00:15:12] Speaker 03:
I didn't get any discovery.

[00:15:14] Speaker 03:
I mean, this is not a text as trying to show that he was unprepared.

[00:15:21] Speaker 03:
This was a text in a desperate plea to get some information so she can make an intelligent decision.

[00:15:28] Speaker 03:
You know, and these kinds of

[00:15:37] Speaker 04:
But she didn't want to go to trial, isn't there evidence in the record that it wasn't like she was insisting on going to trial, and he browbeated her into not doing it.

[00:15:45] Speaker 04:
She didn't want to go to trial in the first place anyway.

[00:15:48] Speaker 03:
Let me answer that.

[00:15:51] Speaker 03:
Because I think that's a valid point.

[00:15:54] Speaker 03:
Absolutely, she didn't want to go to trial.

[00:15:57] Speaker 03:
I don't believe this case.

[00:16:01] Speaker 03:
But if she didn't want to go to trial for the whole time she was there, and he starts plea bargaining the day before,

[00:16:08] Speaker 03:
The trial asked for, you know why there wasn't a prior plea pardoned one can infer because he never went through the stuff.

[00:16:19] Speaker 03:
Because he says, I never went through the stuff.

[00:16:21] Speaker 03:
She said, I never saw the discovery.

[00:16:23] Speaker 03:
Had he gone to her seven months before and said, here's what's happening, two months before, here's what's happening, she could have made an intelligent decision voluntarily to enter a plea

[00:16:39] Speaker 03:
Would the plea have been the same?

[00:16:40] Speaker 03:
I don't know.

[00:16:42] Speaker 03:
But she has that right to deny that right.

[00:16:47] Speaker 03:
You're saying, well, she would have played guilty anyway.

[00:16:50] Speaker 03:
So why do we even take a guilty plea?

[00:16:53] Speaker 03:
I want to plead guilty.

[00:16:54] Speaker 03:
But this is ugly.

[00:17:00] Speaker 03:
How many times do we see a defendant

[00:17:10] Speaker 03:
represented by another defendant in the same district and the defendant being a lawyer.

[00:17:19] Speaker 03:
Very rare circumstance.

[00:17:22] Speaker 03:
And I'm not saying there can be a waiver of conflict or already, but but doesn't have to be a bit of a better

[00:17:42] Speaker 03:
Shouldn't the court say you have a right to another lawyer?

[00:18:18] Speaker 05:
And to clear up some procedural back and forth, the government has not taken two shots at the apple at fugitive disentitlement.

[00:18:26] Speaker 05:
We filed a motion to dismiss this appeal before the motions panel.

[00:18:29] Speaker 05:
When these defendants were fugitives, they eventually came back, or they were extradited back.

[00:18:36] Speaker 05:
They filed motions to reinstate their appeals.

[00:18:39] Speaker 05:
The government objected.

[00:18:41] Speaker 05:
And then the motions panel allowed their appeals to go forward, but allowed and kicked the fugitive

[00:19:06] Speaker 05:
And I just want to clarify what the government's arguments are and why we are seeking to dismiss, because there's a legal component and there's an equitable component.

[00:19:15] Speaker 05:
The legal component is, does this doctrine apply in this case?

[00:19:19] Speaker 05:
That's question number one.

[00:19:20] Speaker 05:
And if it legally applies, we move to the second question.

[00:19:24] Speaker 05:
How should this panel exercise its discretion, either dismiss the case or review

[00:19:32] Speaker 05:
question to.

[00:19:33] Speaker 05:
As a matter of law, the fugitive disentitlement doctrine applies because these defendants' fugitive status coincided with pending appellate proceedings before this court.

[00:19:46] Speaker 05:
That's the language from Ortega Rodriguez.

[00:19:48] Speaker 05:
That's also the language from this court's decision in Sun v. Mukasek.

[00:19:53] Speaker 05:
Did fugitive status coincide with the appeal?

[00:19:56] Speaker 05:
If the answer is yes, we should

[00:20:02] Speaker 05:
opposing counsel's argument that the doctrine should not apply to recaptured fugitives.

[00:20:07] Speaker 05:
The government has cited Estelle and Allen to Supreme Court cases dealing with recaptured fugitives.

[00:20:13] Speaker 05:
Opposing counsel also quoted from this court's decision in Sedita Ard.

[00:20:17] Speaker 05:
We think that case actually confirms the government's position.

[00:20:21] Speaker 05:
Page 12 of 8 of the opinion, Sedita Ard.

[00:20:25] Speaker 05:
reviewed the case law, including this court's prior decision in Katz.

[00:20:30] Speaker 05:
And this is what Sadiqa Ard says.

[00:20:33] Speaker 05:
Katz permits, but does not require, review of a recaptured defendant's appeal.

[00:20:40] Speaker 05:
So Sadiqa Ard, in our view, proves the government's point.

[00:20:45] Speaker 05:
The doctrine applies, and then it's a question of how this court should balance the equities.

[00:20:50] Speaker 05:
Does this court want to review the merits or dismiss?

[00:20:54] Speaker 05:
setting a number of the equities that Judge Gilman recounted at the start of this argument, this court should dismiss.

[00:21:00] Speaker 05:
To borrow language from a Sixth Circuit case that we cited, these defendants played catch me if you can at every aspect and forced the government to expend substantial resources to enlist the State Department, the government of Montenegro, the Montenegrin judiciary to bring them back.

[00:21:23] Speaker 05:
case from the Sixth Circuit.

[00:21:54] Speaker 05:
disagree with opposing counsel.

[00:21:55] Speaker 05:
Those are valid considerations.

[00:21:57] Speaker 05:
This court is obviously up to this court.

[00:21:59] Speaker 05:
How is going to balance the different equities in the case?

[00:22:02] Speaker 05:
But can I stick through the purposes that are undermining undergirding the government's request here?

[00:22:08] Speaker 05:
Abandonment.

[00:22:10] Speaker 05:
These, uh, married at television have fled the country.

[00:22:13] Speaker 05:
She went in communicato with the district court pre pre trial services and her own attorneys hurt her own attorneys

[00:22:33] Speaker 05:
while this court had pending appellate proceedings.

[00:22:37] Speaker 05:
And the answer is yes.

[00:22:38] Speaker 05:
And I can drill down on that.

[00:22:40] Speaker 05:
Marietta Terebellion was in Montenegro.

[00:22:43] Speaker 05:
Her attorneys, who had lost all communication with her, just filed as an abundance of caution a notice of appeals.

[00:22:49] Speaker 05:
That then triggered this court's

[00:23:10] Speaker 02:
for this court.

[00:23:11] Speaker 02:
But it was found with her name, with her direction.

[00:23:14] Speaker 02:
These things don't just happen.

[00:23:15] Speaker 02:
I mean, the appeals were filed.

[00:23:18] Speaker 05:
Yes.

[00:23:18] Speaker 05:
And their appeals were pending.

[00:23:21] Speaker 05:
And they are in Montenegro as fugitives.

[00:23:24] Speaker 05:
And so when they flee to Montenegro, they are not just leaving this country behind.

[00:23:29] Speaker 05:
This is the abandonment rationale.

[00:23:31] Speaker 05:
They are intending to leave this court's jurisdiction behind.

[00:23:35] Speaker 05:
Second purpose underlying the government's motion is deterrence.

[00:23:42] Speaker 05:
this type of behavior in the future, if this court were to review the merits, these defendants will not have faced a single sanction for what – for their flight to Montenegro.

[00:23:56] Speaker 05:
Third of all, Judge Poole.

[00:23:58] Speaker 01:
Yes, Your Honor.

[00:24:00] Speaker 01:
Whether or not they will face the single sanction, my question is this, if we decline to apply

[00:24:14] Speaker 01:
discretion and I think it is a discretionary judgment now but if we decline that

[00:24:26] Speaker 01:
required to affirm on the merits in your view?

[00:24:30] Speaker 05:
Yes, and I'm happy to switch to the merits of the claims, if that's the Court's preference.

[00:24:36] Speaker 05:
If the Court exercises its discretion and reviews their appellate claims, it should affirm.

[00:24:42] Speaker 05:
And I'll start with Marietta Terabelli and the opposing counsel raised his challengingly sophisticated means enhancement.

[00:24:57] Speaker 05:
The court, without any argument from the parties, was earlier in the proceeding was reviewing the guidelines objections and the court just makes a finding that the sophisticated means enhancement applies.

[00:25:12] Speaker 05:
In the reply brief, this is reply brief at page 25,

[00:25:23] Speaker 05:
So I don't think that these citations of the 3553A balancing comments by the district court have any salience in reviewing whether or not the district court appropriately applied this enhancement.

[00:25:35] Speaker 05:
Thanks to that reply brief, that clarification in the reply brief, the only issue up here right now is did the district court commit clear error in finding that the offense conduct involves sophisticated means?

[00:25:47] Speaker 05:
And I would ask

[00:25:51] Speaker 05:
at pages 10 through 13 of our answering brief.

[00:25:55] Speaker 05:
We go through and try in detail, in painstaking detail, explain the sophistication.

[00:26:01] Speaker 05:
And I'll summarize this briefly.

[00:26:04] Speaker 05:
The court should look at the stolen Victoria Couchco identity.

[00:26:08] Speaker 05:
This was the identity that was on the bank account that paid rent at the Canoga Avenue apartment.

[00:26:14] Speaker 05:
That apartment, that address was on a number of the fraudulent loan applications.

[00:26:20] Speaker 05:
It was connected to an IP address that filed one of the applications.

[00:26:25] Speaker 05:
This stolen identity was named on some of the fraudulent loans.

[00:26:29] Speaker 05:
And the stolen identity was also on the bank account that received some of the loans.

[00:26:34] Speaker 05:
So this stolen identity was connected to sophisticated, intricate criminal conduct.

[00:26:40] Speaker 05:
The question, the next question is, could the district court find by a preponderance of the evidence, 50% plus one, that Maritera Bellion was, in fact, Victoria Couchco, that she was using Couchco's identity almost as an alter ego.

[00:26:57] Speaker 05:
The answer is yes, and particularly on preponderance, a preponderance standard, and clear error review.

[00:27:04] Speaker 05:
This is starting at page 10, but I'll hit the highlights.

[00:27:07] Speaker 05:
I think it was Judge Gilman who pointed out that Marietta Terry Bellin was found in possession with a debit card at Miami Airport with Couchco's name on it.

[00:27:17] Speaker 05:
Richard Vazenian, Marietta's spouse, shipped an expensive

[00:27:27] Speaker 05:
was his wife.

[00:27:29] Speaker 05:
Funds from one of the bank accounts connected to Couchco were used to purchase the Colley La Primavera home.

[00:27:36] Speaker 05:
The utilities account on that home is in the name of Marietta's mother.

[00:27:50] Speaker 05:
couch go in a photo of fiber of showing the name fiber one media which is another company that was central to the fraud scheme in this case so line all of this up ample evidence that this Victoria couch go identity is connected to sophisticated intricate criminal conduct

[00:28:12] Speaker 05:
at Couchco and the district court, using a preponderance standard, had ample basis to apply the enhancement and no clear error upon appeal.

[00:28:22] Speaker 05:
I'll just briefly point out on this that one of the co-defendants, Arthur Vazian, in the prior appeal before this court raised a similar attack on the sophisticated means, referring to the fact that, well, the government simply found fraudulent identity documents in my house.

[00:28:37] Speaker 05:
And the prior panel in this case affirmed.

[00:28:39] Speaker 05:
So could you address that?

[00:28:53] Speaker 02:
Council spent some time on that.

[00:28:55] Speaker 05:
Yes, Your Honor.

[00:28:55] Speaker 05:
I'll switch to Tamara Doddian.

[00:28:58] Speaker 05:
So Council, I think, styled this presentation as an ineffective assistance of council claim.

[00:29:02] Speaker 05:
There's been no ineffective assistance claim raised in the briefs in this case, and so we would object to any consideration under a Strickland-type analysis.

[00:29:13] Speaker 05:
Ms.

[00:29:13] Speaker 05:
Doddian, if she wants, can raise that in a post-condition proceeding to Judgement

[00:29:21] Speaker 05:
of a plea agreement.

[00:29:22] Speaker 05:
The appeal waiver provision bars that.

[00:29:26] Speaker 05:
So this court has held and published opinions that, almost identical language, bars a defendant from appealing a district court's denial of a motion to withdraw as her plea.

[00:29:37] Speaker 05:
The only way that Tamara Dottien can get around that before this court is to show that her guilty plea was not

[00:29:47] Speaker 05:
And the plea colloquy is in the record.

[00:29:50] Speaker 05:
The district court went through the plea agreement, the charges, the potential penalties, the factual basis supporting the charges, the waiver of rights provisions.

[00:30:02] Speaker 05:
I don't see anything in that colloquy that's procedurally deficient.

[00:30:07] Speaker 05:
In this colloquy, Tamara says that she has confirmed

[00:30:16] Speaker 05:
agreement.

[00:30:17] Speaker 05:
This is at 2ER 150 and 151.

[00:30:20] Speaker 05:
Tomorrow dining occurs confirms that nobody has pressured me, of course, me to enter into a plea.

[00:30:26] Speaker 05:
So there's nothing in this record to attack the guilty plea as not knowing or voluntary.

[00:30:35] Speaker 05:
And for that reason, the appeal waiver sticks an appellate review of this claim is denied.

[00:30:40] Speaker 05:
Even if we look past that,

[00:30:42] Speaker 05:
the court wants to look at the merits of the district court's order, we'd be here on an abusive discretion, and the district court issued an 11-page order after an extensive evidentiary hearing where Mr. Minassian, the defense attorney, and Ms.

[00:30:56] Speaker 05:
Doddian testified, and the district court kicks through, makes all these credibility findings and factual findings against Tamara Doddian's contentions that she renewed

[00:31:06] Speaker 05:
for this court.

[00:31:07] Speaker 05:
The district court credited Mr. Minassian's testimony that he in fact had reviewed discovery in this case, that he was in fact prepared, no basis for this court to revisit that credibility determination on appeal.

[00:31:23] Speaker 05:
The district court also rejected the claims that Ms.

[00:31:27] Speaker 05:
that Tamar Doddian had been coerced or pressured into the deal, that she received incorrect advice.

[00:31:33] Speaker 05:
In that final point, the district court explains the inclusion of the 151 loans and the plea agreement was exactly for the reason that Judge Gilman said.

[00:31:41] Speaker 05:
She was pleading guilty to conspiracy.

[00:31:44] Speaker 05:
And so a factual basis for a conspiracy charge can include offense conduct committed by co-conspirators in furtherance of the scheme.

[00:31:59] Speaker 05:
Uh, there's no abuse of discretion in the district court's thoughtful denial of the plea.

[00:32:04] Speaker 05:
I have no other, uh, uh, uh, other formative points I would like to make on the, their merits claims.

[00:32:11] Speaker 05:
I would like to return to fugitive disentitlement and just make two quick points, if I may, but, uh, I don't want to interrupt if there are any questions on the merits, uh, the appellate claims.

[00:32:20] Speaker 04:
I'd like you to get back to that doctrine of why you think it's so important to the government that we should adopt your primary position as I gather that we should apply the doctrine.

[00:32:28] Speaker 05:
Yes, because this was, if you look at the case law, this is about an extreme fact pattern in terms of fugitive status, as we've come across.

[00:32:37] Speaker 05:
I mean, the cutting off, Marietta Terebellin cutting off her ankle bracelet, fleeing to Montenegro, living in a seaside villa, trying to access funds from a bank account in the United States and siphon them into Montenegro, leaving minor children in the care

[00:32:57] Speaker 05:
for their bond obligations.

[00:33:00] Speaker 05:
This is the type of conduct that both we think constitutes an abandonment.

[00:33:06] Speaker 05:
When they fled to Montenegro, they had no intent to come back to this country.

[00:33:10] Speaker 02:
So I guess I do have a problem with the abandonment point, only because the appeal was filed.

[00:33:15] Speaker 02:
I mean, how can you abandon something where you actually have filed the appeal?

[00:33:19] Speaker 02:
They filed the appeal.

[00:33:20] Speaker 02:
So they filed the appeal.

[00:33:23] Speaker 05:
Tamar Dadian, then left the country, so that we think that that is clear evidence of her intent to abandon the proceeding.

[00:33:30] Speaker 05:
So for Marietta Belling, she had already fled the country.

[00:33:33] Speaker 05:
This is, I think it's a docket, entry four of this court's docket.

[00:33:37] Speaker 05:
Her trial counsel said, we filed a notice of appeal, even though we haven't even talked with her, just to preserve her appellate rights.

[00:33:45] Speaker 05:
But at that time,

[00:33:47] Speaker 05:
though her trial attorneys told this court, we have not been in contact with Marietta Tarbelli.

[00:33:53] Speaker 05:
We have tried to contact her.

[00:33:56] Speaker 05:
This is in their motion to withdraw from the case.

[00:33:59] Speaker 05:
And so I'm struggling to see a scenario where this appeal was filed simply because their trial counsel

[00:34:05] Speaker 05:
wanted to protect her rights, but had not been given any affirmative instruction to appeal.

[00:34:10] Speaker 05:
How then Meredith Turbellion, living in a seaside villa in Montenegro, can somehow continue to pursue this appeal for months, even though she is on fugitive status.

[00:34:20] Speaker 05:
This reminds me of the fact pattern in the Poonzangari

[00:34:26] Speaker 05:
This is where that defendant is in Massachusetts, flees to Nashville, lives under an assumed name, uses credit cards in the assumed name, and the First Circuit dismisses the appeal in its discretion under the fugitive dis-entitlement doctrine, reasoning that this defendant, who was recaptured involuntarily in a distant city under an assumed name, violating obligations under court order,

[00:34:56] Speaker 05:
in the exact same place as that defendant.

[00:35:00] Speaker 05:
Briefly comment on the defendant's reliance on Katz.

[00:35:03] Speaker 05:
I wanted to stress something that Judge Gilman you alluded to in one of your questions.

[00:35:07] Speaker 05:
So Katz was the defendant who absconded during this court's appellate proceedings, came back, extradited back from, I think it was Norway, files a Section 2255 petition.

[00:35:26] Speaker 05:
on page 612 of the opinion says two things.

[00:35:29] Speaker 05:
First, the CAHPS panel said that fugitive dis-entitlement would have warranted dismissal of the CAHPS' appeal if he had filed one.

[00:35:40] Speaker 05:
Then it turns to the Section 2255 case, and the CAHPS panel says,

[00:35:44] Speaker 05:
But we have not previously applied the doctrine to a defendant who escaped after conviction, was recaptured, came back to the country, and then pursued further legal remedies.

[00:35:53] Speaker 05:
This case is in the first bucket.

[00:35:56] Speaker 05:
And caps make very clear that this was an appropriate request by the government to just dis-entitle a defendant to direct appeal if he or she goes on fugitive status.

[00:36:07] Speaker 05:
If Tamara and Marietta want to file

[00:36:15] Speaker 05:
I can give the court a data point.

[00:36:17] Speaker 05:
Richard Avazian is another co-defendant in this case.

[00:36:20] Speaker 05:
He filed a 2255 already in the district court.

[00:36:23] Speaker 05:
The district court denied relief, but the government did not assert fugitive dis-entitlement as to the 2255 proceeding.

[00:36:29] Speaker 05:
Katz makes very clear that the fugitive dis-entitlement doctrine is appropriate under the facts of this case.

[00:36:35] Speaker 05:
So we think Katz helps us, doesn't hurt us.

[00:36:38] Speaker 05:
Lastly, opposing counsel referenced the Supreme Court's decision in Deakin.

[00:36:42] Speaker 05:
Deegan is irrelevant.

[00:36:45] Speaker 05:
In Deegan, the Supreme Court addressed whether or not we're going to expand the doctrine beyond the criminal case to a parallel related civil proceeding.

[00:36:57] Speaker 05:
And the Supreme Court says, we're not going to do that.

[00:36:59] Speaker 05:
That's a novel application of the doctrine.

[00:37:01] Speaker 05:
We're not going to take it to another case.

[00:37:04] Speaker 05:
We're not doing that here.

[00:37:05] Speaker 05:
This is not a parallel.

[00:37:20] Speaker 05:
As it approaches novel circumstances, as opposing counsel pointed out, the court has looked to the doctrine in immigration cases.

[00:37:28] Speaker 05:
This case here is a traditional application of the fugitive disentitlement doctrine.

[00:37:34] Speaker 05:
These defendants fled at the same time they were trying to initiate appeals in this court.

[00:37:39] Speaker 05:
They come back months, and I think Tamara Dottie's case

[00:37:44] Speaker 05:
I don't remember the exact time period.

[00:37:46] Speaker 05:
Yes, thank you.

[00:37:48] Speaker 05:
And then come back and to go to your point, Judge Gilman, and seek to proceed in this court as if none of this happened.

[00:37:57] Speaker 05:
The doctrine fully supports the government's request to dismiss these appeals.

[00:38:02] Speaker 05:
Going back to that First Circuit case, had the defendant's plans not gone awry, the First Circuit said they would still be fugitives.

[00:38:09] Speaker 05:
They would not be here.

[00:38:11] Speaker 05:
It's only because of the substantial efforts and resources

[00:38:14] Speaker 05:
of the government, of our Montenegro partners, and the Montenegro judiciary, that these defendants were extradited back.

[00:38:23] Speaker 02:
Just hold on.

[00:38:25] Speaker 02:
Judge Gould, do you have any additional questions?

[00:38:32] Speaker 01:
No questions.

[00:38:33] Speaker 01:
Judge Gilman, any additional?

[00:38:35] Speaker 05:
Thanks.

[00:38:35] Speaker 05:
We ask that the court either dismiss the appeals or affirm.

[00:38:38] Speaker 05:
Thank you.

[00:38:39] Speaker 05:
Thank you.

[00:38:40] Speaker 05:
Go ahead, counsel.

[00:38:59] Speaker 00:
raised before this court.

[00:39:01] Speaker 00:
But yeah, we love second chances and I think that's one of the things that the government is ignoring the court ignores is the fact that this court gave her the second chance to return to the jurisdiction to save her appeal and that's what she did.

[00:39:16] Speaker 00:
Not only did she consent to extradition

[00:39:23] Speaker 00:
expedited extradition under Montenegro's abbreviated procedures to get back to this jurisdiction of this court as quickly as possible.

[00:39:31] Speaker 00:
So at that juncture, after she had taken, you know, accepted the carrot to sanction her anyways, we think under Dagen it's just too harsh a punishment.

[00:39:43] Speaker 00:
The government says that Ms.

[00:39:44] Speaker 00:
Tarabellin will not have been sanctioned at all, and that's not true.

[00:39:48] Speaker 00:
She got the

[00:39:55] Speaker 00:
to appear.

[00:39:57] Speaker 00:
She was punished and it also points to different facts in her escape to say this is why dis-entitlement should be applied.

[00:40:06] Speaker 00:
Dis-entitlement is not about protecting law enforcement.

[00:40:11] Speaker 00:
It's not about protecting the government's interests.

[00:40:14] Speaker 00:
It's about protecting the appellate process.

[00:40:17] Speaker 00:
You look at all the rationales for dis-entitlement doctrine and it's all about the appellate

[00:40:34] Speaker 00:
The facts of her escape were bad, which doesn't affect the appellate process.

[00:40:38] Speaker 00:
You're saying that because she was a fugitive at the time the notice of appeal was filed, that that's enough, and that's not what the cases say.

[00:40:45] Speaker 00:
That's not what Ortega Rodriguez says, and that's not how the case has been handled.

[00:40:49] Speaker 00:
We clearly don't want other people to do what your client did, do we?

[00:40:53] Speaker 00:
No, we don't.

[00:40:54] Speaker 00:
That is the deterrence aspect.

[00:40:56] Speaker 00:
But what makes our client's case different is that you offered her the opportunity, and she took it.

[00:41:02] Speaker 00:
I also wanted to, let's see, move on to the sentencing claim.

[00:41:08] Speaker 00:
So he said that the fact, our point is not that the judge was, judge's explanation was inadequate.

[00:41:15] Speaker 00:
Our point is that the judge just applied the wrong rule.

[00:41:18] Speaker 00:
And we wanted to show statements to show that he applied the wrong rule.

[00:41:21] Speaker 00:
Under the old rule, you didn't even need to show, you didn't need to show any sophisticated conduct.

[00:41:27] Speaker 00:
It was just enough that one person had it.

[00:41:29] Speaker ?:
It was enough that there was,

[00:41:47] Speaker 00:
They also try to link Couchco to Terabellion, Ms.

[00:41:53] Speaker 00:
Terabellion.

[00:41:54] Speaker 00:
The judge never found that Ms.

[00:41:56] Speaker 00:
Couchco was Ms.

[00:41:57] Speaker 00:
Terabellion.

[00:41:58] Speaker 00:
He never makes that finding.

[00:42:00] Speaker 00:
They make these connections, but the connections, they really should require the district court to go through it because it's a fact-based inquiry.

[00:42:13] Speaker 00:
It's a lot of evidence that the sophisticated people in this, in this fraud, they were the ones who controlled her identity.

[00:42:19] Speaker 00:
And, um, you know, what he said about her was she wasn't essential.

[00:42:24] Speaker 00:
Um, did, did your honors have any questions about Katherine?

[00:43:01] Speaker 03:
Because ineffective assistance to counsel, I know it can be raised post trial, but if it's on its face ineffective assistance to counsel, how could that plea counsel?

[00:43:56] Speaker 03:
that is, I'd say none.

[00:43:59] Speaker 03:
I'd say there's so few of those cases in the United States where an attorney is indicted by the same people that are inditing his clients, no court would allow that to go forward without appointing another attorney or at least giving her the right to talk to another attorney, which this

[00:44:27] Speaker 01:
are best presented in the habeas petition because you can make a record of the reasons why people did stuff.

[00:44:57] Speaker 03:
which I think those two points that were given her were.

[00:45:01] Speaker 03:
But I made all those arguments.

[00:45:03] Speaker 03:
I have no new arguments other than my brief.

[00:45:06] Speaker 02:
All right.

[00:45:07] Speaker 02:
Thank you.

[00:45:09] Speaker 02:
Judge Gold, any additional questions?

[00:45:11] Speaker 02:
No questions.