[00:00:01] Speaker 02:
Good morning, and welcome to the Ninth Circuit.

[00:00:05] Speaker 02:
I'm Michelle Friedland, and Judge Bybee and Judge Miller and I are very happy to be here in Alaska, and we welcome you all this morning.

[00:00:10] Speaker 02:
Thank you for coming.

[00:00:13] Speaker 02:
We have some cases that are submitted on the briefs today.

[00:00:15] Speaker 02:
United States versus Griffin, 23-774 is submitted on the briefs, and United States versus Valleley, 23-30019 is submitted on the briefs.

[00:00:27] Speaker 02:
We'll hear the other cases in the order in which they appear on the calendar.

[00:00:32] Speaker 02:
The first is United States versus Cody, 23-30011.

[00:00:35] Speaker 02:
Each side will have 10 minutes.

[00:00:43] Speaker 01:
Good morning.

[00:00:45] Speaker 01:
Mr. Zill arguing on behalf of Mr. Cody.

[00:00:51] Speaker 01:
Justice Friedland, Justice Bybee, and Justice Miller, may it please the court and counsel

[00:00:56] Speaker 01:
Right out of the gate, I need to correct a couple of mistakes that I found in my briefing as I was preparing for this argument.

[00:01:03] Speaker 01:
I do so both as an officer of this court, and I also do it because I think it goes to the heart of what I think is the most critical issue in this case, and that is the second motion to withdraw the guilty plea that we filed.

[00:01:16] Speaker 01:
And so I just want to be really clear.

[00:01:20] Speaker 01:
My reply brief, first of all, incorrectly suggests that there was no hearing on the second motion to withdraw the guilty plea.

[00:01:28] Speaker 01:
That, as I'm sure the court caught, is inaccurate.

[00:01:31] Speaker 01:
There was a short hearing just prior to sentencing, and we were allowed some short time to argue that.

[00:01:38] Speaker 01:
However, it is correct that we were not afforded an argument after the first motion to withdraw the guilty plea.

[00:01:44] Speaker 01:
So I need to correct that for the court and apologize.

[00:01:46] Speaker 01:
The other thing that I need to correct for the court that I think is more critical is in both of my appellate briefs, I did indicate that Mr. Cody had spoken with his previous counsel about the warrant issue and the affidavit in support of the warrant.

[00:02:04] Speaker 01:
And I'm not sure how I got my wires crossed, but I ended up kind of with the help of an associate, and I didn't fully catch it, is we had put in there that at one point he had approached his previous counsel about if there was any legal issues with respect to the warrant and the affidavit, and we had made a statement in the briefing along the lines of there's nothing, drop the issue, and that's not correct.

[00:02:33] Speaker 01:
What I had argued in the second motion to withdraw the guilty plea is true and correct.

[00:02:42] Speaker 01:
And that's what Mr. Cody had an opportunity to review.

[00:02:46] Speaker 01:
In that, what I had said is, I asked Mr. Cody if he had received all of his discovery, or excuse me, I had said to him that, or he said that if he was placed under oath, he would state that he wrote a letter to his previous counsel asking whether there was any basis to challenge the warrant in the case.

[00:03:08] Speaker 01:
And Mr. Cody testified that his previous legal counsel never addressed the issue.

[00:03:14] Speaker 01:
And then based on that belief, when I came on, Mr. Cody expressly asked me to work on the issues that you see in the motion to dismiss.

[00:03:22] Speaker 01:
And I take responsibility for my role in this mistake that's happened, and I want to acknowledge that to the court right now.

[00:03:31] Speaker 02:
I guess I'm a little bit confused about what you're saying though.

[00:03:34] Speaker 02:
Are you now saying that he did discuss, because I think your reply brief said that he was originally advised by counsel that there were no issues with the search warrant and to drop the issue.

[00:03:43] Speaker 02:
Are you saying that's correct or not correct?

[00:03:44] Speaker 01:
That's not correct, Your Honor.

[00:03:46] Speaker 01:
What's correct is that he had written a letter to his previous counsel asking if there was a warrant, and to be clear, he'd never seen that.

[00:03:55] Speaker 01:
And he was asking, was there a warrant?

[00:03:58] Speaker 01:
Are there any issues with it?

[00:03:59] Speaker 01:
And he never heard back from his previous counsel.

[00:04:02] Speaker 02:
So you're saying he didn't he he didn't get advice to drop the issue.

[00:04:06] Speaker 02:
So that means he doesn't have a claim about getting bad advice anymore.

[00:04:10] Speaker 02:
That's what you're saying.

[00:04:11] Speaker 01:
Well, I think, going to the heart of the issue, when you look at the McTiernan and you look at the Mayweather decisions, this really comes down to the question of is this case more akin to one or the other?

[00:04:26] Speaker 01:
And I'd argue it's more akin to McTiernan because the fact of the matter is at the time he entered his guilty plea, he thought in his mind that all of his pretrial remedies had been exhausted.

[00:04:38] Speaker 01:
And the reason why he thought that is first counsel was silent on the issue.

[00:04:43] Speaker 01:
And then, and I'm again, I'm acknowledging my role in it.

[00:04:47] Speaker 01:
I did not discuss that with him.

[00:04:49] Speaker 01:
And so he did not have all the adequate information available to him at the time of his guilty plea.

[00:04:56] Speaker 01:
So I'm arguing that this is akin to McTiernan and that he just didn't know.

[00:05:02] Speaker 01:
And it wasn't, and he just had inadequate advice is what the McTiernan and also what the Mayweather decision talk about.

[00:05:08] Speaker 01:
And what the Mayweather decision turned on is there was adequate advice in that case.

[00:05:14] Speaker 01:
And in this particular case, it's just silent.

[00:05:17] Speaker 01:
Mr. Cody didn't know.

[00:05:19] Speaker 01:
So that's the argument.

[00:05:20] Speaker 01:
Does that clarify it for the court?

[00:05:25] Speaker 02:
I guess you're saying he didn't get any advice instead of he got bad advice?

[00:05:30] Speaker 01:
I'm saying that he got inadequate advice, which is the language that is found in both McTiernan and Mayland.

[00:05:36] Speaker 03:
Are you suggesting that he got ineffective assistance of counsel at that point?

[00:05:40] Speaker 01:
So I've given that a lot of thought, your honor, and the answer to that is I don't know because, and this goes into another question, and I'm not trying to play games.

[00:05:49] Speaker 03:
At this point, counsel, that's probably not fully developed on the record and probably not before the court, probably not worth your time right now.

[00:05:56] Speaker 03:
You're gonna have to file a habeas matter in order to explore that.

[00:06:00] Speaker 03:
So that doesn't sound like that's a profitable line for you to argue.

[00:06:04] Speaker 01:
Well, I agree, Your Honor, and the one thing I just want to add to it is the judge at the end of that short hearing on the second motion to withdraw, I quote verbatim, he said,

[00:06:16] Speaker 01:
All right, I'm denying the request, saving your exception.

[00:06:19] Speaker 01:
There was absolutely no analysis.

[00:06:22] Speaker 01:
And so we don't have any type of factual basis whatsoever to know why that was even, why we even had the ruling we had.

[00:06:28] Speaker 01:
So we don't know whether there's ineffective assistance of counsel.

[00:06:31] Speaker 01:
We don't know anything, but I am submitting to this court that there was an abuse of discretion there and that Mr. Cody was entitled to some sort of reasoned decision explaining why this case, the judge obviously felt like it was closer to the Mayweather decision,

[00:06:45] Speaker 01:
But we don't know why the judge felt that way.

[00:06:48] Speaker 01:
And at a minimum, he's entitled to some sort of analysis on that issue.

[00:06:52] Speaker 04:
Before you run out of time, could you say a bit about the sentencing issue that you've raised and maybe start by just clarifying, you are challenging, or is it correct that you are challenging only the substantive reasonableness of the sentence and you have not made any argument for procedural unreasonableness or any challenge to the adequacy of the district court's explanation for the sentence?

[00:07:16] Speaker 01:
So I think you're correctly characterizing the briefing.

[00:07:20] Speaker 01:
And one thing that I came to correct with the court today or to emphasize is we do have an issue with the procedural portion of it because although the judge identified the section 3553A factors at the beginning of the sentence, when he was done, he just simply pronounced sentence.

[00:07:38] Speaker 01:
and he didn't analyze at all how the sentence was necessary, but not more than what was required to meet the rule 3553A factors.

[00:07:49] Speaker 01:
And so to be clear with you, your honor, we're absolutely challenging the procedural aspect of that.

[00:07:55] Speaker 01:
And that's part of why we're saying that there was also an abuse of discretion there because we have no idea how Mr. Cody's sentence is tailored within those factors.

[00:08:06] Speaker 04:
I guess it wasn't clear to me that that was developed as a separate argument and as a distinct argument in your brief, as opposed to just the substantive reasonableness of 80 years.

[00:08:18] Speaker 04:
So is there any, do you have anything to say to address that?

[00:08:23] Speaker 01:
Obviously, the record's submitted, and I would need to double-check.

[00:08:30] Speaker 01:
I thought we had talked about how we thought it was an abuse of discretion, and I suppose I'm asking in a way for this court to bootstrap that in and talk about how there was procedural abuse by us invoking the fact that there was an abuse of discretion.

[00:08:43] Speaker 01:
But I have to agree with you, Your Honor, that argument should have been developed more fully, and it is an issue that we're asking this court to address.

[00:08:52] Speaker 04:
I mean, supposing it to be presented to us, I mean, we have said that when the court sentences within the guidelines or A for sure, I went up in the court sentences well below the guidelines, not a whole lot of explanation is necessary.

[00:09:07] Speaker 04:
And we've reviewed the PSR.

[00:09:12] Speaker 04:
I mean, what more did the district court really need to say in your view?

[00:09:16] Speaker 01:
So I think that's exactly what the case law says, and I can't sit here and argue against that, Your Honor.

[00:09:24] Speaker 01:
What I can tell you, if I may, I understand in that issue, in isolation, I have to concede that point to the court as an officer of the court.

[00:09:35] Speaker 04:
But when you look at- Which point are you conceding?

[00:09:39] Speaker 01:
The fact that that point in and of itself, the court's correct that we don't have to, there doesn't have to be a lot of reasoning, but you look at the sentence on top of the fact that there was no explanation whatsoever on the second motion to withdraw.

[00:09:56] Speaker 01:
I would argue to the court, and I'm just, I'm gonna show a quick pattern here on the motion to dismiss.

[00:10:03] Speaker 01:
It was very cursory brief that we received.

[00:10:06] Speaker 01:
And our our issues weren't addressed substantively on the first motion to withdraw the guilty plea Same thing.

[00:10:15] Speaker 01:
We just read received a cursory brief and order

[00:10:19] Speaker 01:
Yes, the cursory order.

[00:10:20] Speaker 01:
Thank you for correcting me, your honor.

[00:10:23] Speaker 01:
And, and then we see, I wasn't, we weren't, we were promised a hearing by the, the original district court judge that was taken away.

[00:10:30] Speaker 01:
We had lined up a public defender.

[00:10:32] Speaker 01:
Um, and I'm, I've got 10 seconds left, but it's an overall pattern that we see here that this record wasn't fully fleshed out.

[00:10:40] Speaker 01:
Mr. Cody doesn't really know what the basis of all these rulings are.

[00:10:48] Speaker 02:
I am at a time... I'll give you a minute for rebuttal, but let's hear from the government.

[00:10:52] Speaker 01:
Thank you, Your Honor.

[00:10:58] Speaker 00:
May it please the Court, the Council.

[00:11:00] Speaker 00:
My name is David Robbins and I have the privilege of representing the United States in this matter.

[00:11:05] Speaker 00:
To begin, Your Honor, I would like to address where you somewhat left off in questions regarding a procedural challenge to the sub-sentence as opposed to a substantive challenge.

[00:11:13] Speaker 00:
In this case, I do not see the defendant having raised procedural error at all.

[00:11:18] Speaker 00:
The only case cited in the defendant's brief was United States v. Brown, a 2019 case out of the Sixth Circuit that talks about substantive unreasonableness.

[00:11:26] Speaker 00:
In his analysis underneath that case, he talks about how the judge had no, well, he was sentenced for a production of child pornography, not actual hands-on offense.

[00:11:35] Speaker 00:
Therefore, it was disproportionate and unreasonable.

[00:11:37] Speaker 00:
No challenge to procedure at this point.

[00:11:41] Speaker 00:
So I would consider that not appropriately before the court.

[00:11:44] Speaker 00:
So with that, I would submit on that.

[00:11:46] Speaker 04:
So just supposing for a moment that we were to disagree with you on that.

[00:11:52] Speaker 04:
We have here the district court ordering the defendant to die in prison with an 80 year sentence.

[00:12:00] Speaker 04:
And when I look at the PSR, there seems ample justification for that in terms of the defendant's conduct.

[00:12:10] Speaker 04:
But the only explanation we have from the district court is a half sentence pro forma citation to 3553.

[00:12:19] Speaker 04:
Do you think that's appropriate for the district court to give so little explanation for such a significant sentence?

[00:12:28] Speaker 00:
I'll do my best to reason from the hip, Your Honor, because I was not prepared to argue proceduralness as the government stated.

[00:12:34] Speaker 00:
We view this as substantive.

[00:12:35] Speaker 00:
But my response to that would be, yes, it would be appropriate.

[00:12:37] Speaker 00:
As the court recognized, this was a below guideline sentence.

[00:12:40] Speaker 00:
It was originally 140 years, as was called from.

[00:12:42] Speaker 00:
80 years is a significant departure, particularly on this type of crime.

[00:12:45] Speaker 00:
Second of all, it wasn't just a sentence.

[00:12:47] Speaker 00:
They had the benefit of sentencing memorandums from the defendant, from the government, objections to the PSR, objections that were addressed.

[00:12:53] Speaker 00:
No objections to the factual conduct.

[00:12:55] Speaker 00:
And of course, a statement of reasons issued accordingly.

[00:12:58] Speaker 00:
So I do believe that due process and procedural reasonableness can be defended on this record as I know it.

[00:13:03] Speaker 00:
without taking a deeper dive into the case law, that would be my instinctual response to your Honor's question.

[00:13:09] Speaker 00:
Turning next to what I also think to be.

[00:13:13] Speaker 04:
In your experience, I realize the judge in this case was not from the District of Idaho, but was visiting or sitting by designation in Idaho.

[00:13:24] Speaker 04:
I mean, is this a common practice in sentencing in your experience to get explanations that are this, I mean, I think perfunctory is not an inappropriate description of it.

[00:13:37] Speaker 00:
It varies a lot from judge to judge and circumstance to circumstance, Your Honor.

[00:13:41] Speaker 00:
If we're doing a credit for time served with a stipulated sentence on a 1326, barely anything's mentioned at all.

[00:13:47] Speaker 00:
But of course, if it is a high conflict resolution case, we will see a lot more coming from the bench in terms of background characteristics of full analysis under the 3553A factors.

[00:13:57] Speaker 00:
If I were to answer you honestly, I typically do see more analysis, Your Honor, than just simply a reference to 3553A.

[00:14:02] Speaker 00:
I do know in some jurisdictions that is practice.

[00:14:06] Speaker 00:
Not that I'm arguing that this court changes practice, but in some circuits saying I've referenced the 3553A factors is enough procedurally to satisfy.

[00:14:12] Speaker 00:
I don't believe that's the case in the Ninth Circuit, but like I said, Your Honor, I've seen varying practice, but I have seen more typically given.

[00:14:20] Speaker 00:
Moving on to the next issue, Your Honor, that I identify as being a big one in this case is whether or not the defendant was can grant relief or that the judge was wrong to deny the motion to withdraw the guilty plea.

[00:14:34] Speaker 00:
Your Honor, in this particular case, the standard of review for this issue is going to be abuse of discretion with clear error applied to any underfactualizing analyses.

[00:14:42] Speaker 00:
Defense counsel and I have brought to you many cases touching on motions to withdraw, please.

[00:14:47] Speaker 00:
The big cases we have brought to you are Davis, Mayweather, and McTiernan, because they do touch on ineffective or inadequate representation of counsel.

[00:14:55] Speaker 00:
However, there are several other cases that providing analysis points that I do think bear on this particular case.

[00:15:01] Speaker 00:
And all those cases are in the brief, they are Jones, they are Hyde, they are Ortego Asconeo, and they are Ruiz and they are Nostratus.

[00:15:08] Speaker 00:
When we look at all those, when we evaluate under 11D2B, whether or not a defendant can withdraw, he has to present a fair and just reason.

[00:15:18] Speaker 00:
Now the commentary to that guide in that particular rule, and as is recognized in our case law in Ortego Escanayo, is there are several factors to address.

[00:15:26] Speaker 00:
It is not a scientific or a mechanical analysis.

[00:15:29] Speaker 00:
We look at the timing.

[00:15:30] Speaker 00:
We look at the persistence of a competent counsel before the defendant.

[00:15:33] Speaker 00:
We look at protestations of innocence.

[00:15:35] Speaker 00:
And of course, we look at the reasons for wanting to withdraw the plea.

[00:15:39] Speaker 00:
Now, in analyzing that in the Ninth Circuit, there have been several rules that have developed.

[00:15:43] Speaker 00:
First off, the defendant bears the burden.

[00:15:45] Speaker 00:
Typically, reasons to withdraw pleas reflect ineffective plea colloquies, newly discovered evidence, intervening circumstances, or any reason that is fair and just but unknown to the defendant at the time he entered his plea.

[00:15:57] Speaker 00:
And when we apply all those rules to this case, I do not believe that the judge in any way abused his discretion.

[00:16:02] Speaker 00:
The first thing I'd like to point out is the timing.

[00:16:06] Speaker 00:
The defendant received the search warrant that he challenges in this case the day after his arraignment on December 10th in discovery.

[00:16:13] Speaker 00:
So between receiving the warrant that he complains on and filing the motion to withdraw, he had that warrant for one year and five months and some days.

[00:16:21] Speaker 00:
Between having the warrant and the change of plea, he had it for 301 days.

[00:16:25] Speaker 00:
Between the change of plea and filing the motion to withdraw, he had it for seven months.

[00:16:29] Speaker 00:
Between the PSR and the motion to withdraw the plea, the first one, he had it for five months.

[00:16:34] Speaker 00:
That timeline weighs against finding a fair and just reason.

[00:16:39] Speaker 00:
The other factor that I believe weighs in this analysis is the continuity of counsel.

[00:16:44] Speaker 00:
Defense counsel was present with the defendant throughout the entirety of the proceedings.

[00:16:49] Speaker 00:
He had the benefit of this particular counsel prior to the change of plea for six months on his case.

[00:16:55] Speaker 00:
The warrant was six pages out of 186 pages of discovery.

[00:16:58] Speaker 00:
It could have been read.

[00:17:00] Speaker 00:
But this is indistinguishable from Davis, Mayweather, and McTiernan in which it was post plea the defendant acquires new counsel and identifies an error with prior counsel.

[00:17:07] Speaker 00:
So some ways that renders this case an opposite.

[00:17:10] Speaker 00:
But really that leads into the third and the major point, which were the reasons for the defending wanting to withdraw his plea.

[00:17:16] Speaker 00:
I'm kind of glossing over the big reason, which was they're pointing out the Hilly decision.

[00:17:20] Speaker 00:
Hilly to the government is a non-factor in this case because a subsequent case developed.

[00:17:24] Speaker 00:
It was distinguished under the Mendez decision.

[00:17:26] Speaker 00:
Of course, Boehm, the subsequent decision, has rendered that case just not applicable in this circuit.

[00:17:31] Speaker 00:
So really, we're focusing on the suppression issue for the warrant.

[00:17:35] Speaker 00:
In the defendant's pleadings, he presented the reasons for why he wanted to withdraw the plea.

[00:17:39] Speaker 00:
At excerpts of record 47 in the first motion to withdraw, defense counsel stated the reason he wanted to withdraw, which was corrected today, was that the defendant broached the issue with suppression with the defense lawyer, but that he dismissed it.

[00:17:52] Speaker 00:
In the second motion to withdraw at excerpts of record 23, it changes a little bit.

[00:17:56] Speaker 00:
It says that he approached it with counsel, but counsel didn't respond.

[00:17:59] Speaker 00:
And then in supplemental excerpts of record 007 at the actual sentencing hearing when oral argument was presented to the court,

[00:18:05] Speaker 00:
Counsel represents to the court that he assumed, based on counsel's silence, that he didn't have a suppression issue.

[00:18:12] Speaker 00:
Well, that is critical because the defendant knew about the suppression issue, which puts this firmly in the Mayweather case, not in the McTiernan case.

[00:18:20] Speaker 00:
In the McTiernan case, the defendant had no idea about the suppression issue until after sentencing.

[00:18:25] Speaker 00:
Here, the defendant knew about a suppression issue prior and assumed there was not a problem.

[00:18:30] Speaker 00:
And the defendant should be held accountable for that assumption and that decision.

[00:18:34] Speaker 00:
I'm running short on time, but in trying to come up with this, I was thinking about going to a doctor.

[00:18:39] Speaker 00:
If I go to a doctor and complain that my knee hurts, and I go, what's causing this?

[00:18:43] Speaker 00:
And he stares at me blankly.

[00:18:44] Speaker 00:
I get mad because he doesn't diagnose me and I leave the room.

[00:18:47] Speaker 00:
I go to a second doctor and I walk in.

[00:18:50] Speaker 00:
He's like, what's bothering you?

[00:18:51] Speaker 00:
Well, it's my elbow.

[00:18:52] Speaker 00:
I assume my knee is healthy because the prior doctor didn't diagnose or say anything.

[00:18:56] Speaker 00:
That's not med mal for the second doctor.

[00:18:58] Speaker 00:
That is a decision by the patient not to cooperate with second counsel.

[00:19:03] Speaker 00:
But the point is the defendant was aware and the defendant assumed and he needs to be held liable for that assumption.

[00:19:09] Speaker 00:
The fourth issue I would bring before the court is there was no- The suppression error anyway?

[00:19:14] Speaker 00:
I'm sorry, Your Honor.

[00:19:15] Speaker 02:
Do you think there's any validity to the suppression concept here?

[00:19:19] Speaker 00:
There's avenues of attack in any warrant, especially when it comes to digital search and seizure, because it's a search within a search.

[00:19:25] Speaker 00:
Particularity is very much context based on could the government have been any more precise.

[00:19:29] Speaker 00:
There may be even if there's a technical issue with the warrant, the good faith exception that applies, but that was never litigated before the district court.

[00:19:37] Speaker 00:
consideration here because the defendant, aware of the suppression issue, chose to tell his lawyer to focus on the motion to dismiss the indictment and by implicature went away from that argument on his own assumption.

[00:19:51] Speaker 00:
The next issue I would raise too is there was absolutely no issue in terms of a sea change in law.

[00:19:56] Speaker 00:
The concepts of particularity, over breath, brute face attacks on probable cause has been developed for decades.

[00:20:03] Speaker 00:
So we're not talking about a change kind of like comprehensive drug testing or something that changed actual meritus suppression issues for warrants.

[00:20:10] Speaker 00:
So therefore there was no intervening circumstance and the judge did not abuse his discretion in his order finding that.

[00:20:16] Speaker 00:
Lastly, too, is I urge the court to analyze this a little bit atomistically and granularly.

[00:20:21] Speaker 00:
Defense counsel has put the search warrant before this court in the excerpts of record.

[00:20:25] Speaker 00:
The district judge at the district level never had that.

[00:20:29] Speaker 00:
And the first motion to withdraw, there's two paragraphs, and it simply says there's a suppression issue.

[00:20:34] Speaker 00:
We want to raise it without any analysis, without any meat, without a copy of the warrant.

[00:20:40] Speaker 00:
He bears the burden under Davis to bring forth those fair and just reasons, and of course it's to be liberally construed, and he doesn't have to prove that the motion would be successful.

[00:20:48] Speaker 00:
He doesn't have to prove that he's actually innocent, but he has to do more than just simply assert in a paragraph there's a problem.

[00:20:53] Speaker 00:
And that's all he did.

[00:20:54] Speaker 00:
So when the court made its decision, there was no fair and just reason present.

[00:20:58] Speaker 00:
With that, I see my time has expired.

[00:21:00] Speaker 00:
I respectfully submit I ask that you affirm the conviction.

[00:21:04] Speaker 02:
Thank you.

[00:21:04] Speaker 02:
We have a minute for Rubenel.

[00:21:09] Speaker 01:
Thank you.

[00:21:10] Speaker 01:
The bottom line here I think goes to what Justice Miller said is we're talking about an 80-year sentence that Mr. Cody's in his 40s.

[00:21:18] Speaker 01:
He will die in prison.

[00:21:20] Speaker 01:
All we're asking for is for these issues to be fully fleshed out.

[00:21:24] Speaker 01:
These are real issues that we've discussed.

[00:21:26] Speaker 01:
I'm not going to go rehash them.

[00:21:27] Speaker 01:
I don't have the time to rehash them.

[00:21:29] Speaker 01:
But in Healy, excuse me, in McTiernan, the court found that given the circumstances, it was appropriate to have a full evidentiary hearing.

[00:21:38] Speaker 01:
That's what we're asking for here is a full evidentiary hearing.

[00:21:42] Speaker 01:
This is not ideal.

[00:21:43] Speaker 01:
I've acknowledged my role in this, but the bottom line is it was a perfect storm.

[00:21:48] Speaker 01:
You had two defense attorneys and it was a situation on this very critical issue.

[00:21:55] Speaker 01:
Unfortunately, the left-hand didn't know what the right-hand was doing.

[00:21:58] Speaker 01:
All we're asking is to flesh this out.

[00:22:00] Speaker 01:
There are so many factual issues.

[00:22:02] Speaker 01:
I have nine seconds left, but even going to the Haley decision, yes, it's been distinguished by this court, but it's still a fact-driven analysis and we didn't get that.

[00:22:11] Speaker 01:
We haven't had that in any of the decisions.

[00:22:13] Speaker 01:
So we ask that the court just send it back and let's develop the record fully.

[00:22:17] Speaker 02:
Thank you, both sides.

[00:22:20] Speaker 02:
This case is submitted.