[00:00:00] Speaker 04:
good afternoon good afternoon jeffrey jones for the appellant noam wargowski mr margovsky's defense counsel in this case could you please speak up a little louder right yes sir the microphone might have been too far oh if i could um reserve three minutes for rebuttal please all right watch your clock and we'll try to give you a signal thank you mr margovsky's defense counsel provided ineffective assistance by failing to raise an obvious challenge to a regulatory conspiracy crime.

[00:00:31] Speaker 04:
And this failure rendered Mr. Margovsky's guilty plea not knowing and voluntary.

[00:00:36] Speaker 04:
The district court in this case in denying the 22... Counsel, I'm going to interrupt you just briefly.

[00:00:41] Speaker 02:
Before we get into the merits of this, we did receive a filing from your client late last week indicating that there was some difficulty in the relationship between the two of you. Yes. And just for the record, I wanted to ask, You're here, you're representing him, and you're comfortable proceeding?

[00:00:59] Speaker 04:
Oh, yes, absolutely. I am, yes.

[00:01:02] Speaker 02:
Thank you.

[00:01:02] Speaker 04:
Go ahead. In denying Mr. Margovsky's 2255 motion, the district court relied heavily on this court's 1976 decision in Guerrilla-Garcia. And Guerrilla-Garcia is easily distinguished. On the question of Congress's intent in passing the statute and whether Congress intended for the executive to be empowered to create a new conspiracy crime, a new criminal offense, when there was already a general conspiracy statute that Congress was aware of.

[00:01:37] Speaker 04:
And the argument there would be that Congress's silence as to conspiracy indicates that Congress intended the general conspiracy statute to apply.

[00:01:48] Speaker 01:
Mr. Jones, before we get into that, could I ask you please to address the issue that the filing was late? Yes.

[00:01:56] Speaker 04:
Well, the filing was definitely eight days late.

[00:01:59] Speaker 04:
But Mr. Murgovsky has raised a very, a lot of equitable tolling arguments and facts. Like what? That he, his health, that he relied on a third party to deliver his motion.

[00:02:19] Speaker 02:
We normally are looking at circumstances outside of the petitioner's control. And the third-party delivery was a choice entirely made by him.

[00:02:29] Speaker 04:
Absolutely. The court, there are a lot of, he invoked a lot of circumstances, a lot of things that happened in the prison, access to the law library, shutdowns during COVID. I did detail a lot of, a lot of that's detailed in the briefs. I think the main point is that the equitable tolling determination is a totality of the circumstances. And I agree with what you said about the third-party delivery, but the district court chose not to address it.

[00:03:04] Speaker 04:
And if this court believes that the case turns on the timeliness, it should be for the district court to evaluate that.

[00:03:14] Speaker 03:
Mr. Jones, I have a couple of questions for you on this issue.

[00:03:24] Speaker 03:
I thought that one of your arguments had to deal with the way one – what's contained in the district court's docket at item number 539. That's true.

[00:03:36] Speaker 04:
The date that the cert petition was filed.

[00:03:41] Speaker 04:
He believes – he relied on the docket as to when the cert petition was filed, which changes when the year begins to run.

[00:03:48] Speaker 03:
If you read the docket carefully, it doesn't say – When the cert petition was filed, it says the petition for a writ of certiorari was denied. It says is denied.

[00:03:59] Speaker 04:
Yes.

[00:04:00] Speaker 04:
Denied, yes. I misspoke.

[00:04:03] Speaker 03:
Now, what the note doesn't say is that it was denied on – I think it was October 4th.

[00:04:10] Speaker 04:
True.

[00:04:10] Speaker 03:
Is that correct?

[00:04:13] Speaker 04:
That's correct, Your Honor.

[00:04:15] Speaker 03:
Do we know if he received the letter from the Supreme Court that says – That the petition for certiorari was denied where it's dated October 4th?

[00:04:29] Speaker 04:
I don't believe we know that, Your Honor. I don't believe that's in the record.

[00:04:35] Speaker 03:
Have you ever seen it?

[00:04:36] Speaker 04:
No.

[00:04:39] Speaker 04:
Nor have I seen any allegation addressing that.

[00:04:42] Speaker 03:
Is there anything that's inaccurate about what's contained in entry number 539? No.

[00:04:52] Speaker 04:
I don't believe so, Your Honor, except that I'm not looking at the docket right now. I have it on my computer if I should look at it. I don't recall that. I believe that it simply was when the denial was entered on the docket and he relied on the date on the docket.

[00:05:17] Speaker 01:
Did anybody advise him to rely on the date in the docket? Does he claim that? He doesn't allege that, Your Honor, no. So it's an error by him?

[00:05:26] Speaker 04:
In that case, I would say it was an error that an attorney wouldn't have made, and it's a long list of things he believes caused him to miss the date by eight days. Okay.

[00:05:44] Speaker 03:
Well, it... What struck me as a little bit odd was it says, after it says the petition for writ of certiorari is denied, then there's a couple of initials, which I gather are the docketing clerks. It says court staff. Then there's a parentheses that says filed on 10-13-21. Another set of parentheses entered on 10-15-21. You kind of have to know how to read a docket to understand what those are.

[00:06:14] Speaker 03:
or what those mean, I should say.

[00:06:16] Speaker 04:
I agree with that, Your Honor.

[00:06:20] Speaker 03:
Okay.

[00:06:23] Speaker 01:
You were on your first point on IAC.

[00:06:26] Speaker 04:
Yes, yes. I believe the Garcia, the Garcia, the Garola-Garcia decisions easily distinguished here.

[00:06:36] Speaker 04:
With regard to Congress's intent, and it was a, It's a separate statute, and the court there relied on legislative history regarding adding an attempt offense.

[00:06:53] Speaker 04:
That's not present here with respect to conspiracies. And adding a conspiracy is essentially a new crime as opposed to a lesser version of the statutory crime.

[00:07:04] Speaker 01:
That statute and the one we have before us, the word control is still in both statutes, correct?

[00:07:11] Speaker 04:
Absolutely.

[00:07:12] Speaker 01:
The president delegates control.

[00:07:15] Speaker 01:
Pardon me. This Congress delegates control to the president as to making regulations which include criminal regulations. Correct.

[00:07:25] Speaker 04:
That's correct, Your Honor. Yes.

[00:07:26] Speaker 01:
So why is control sufficient to allow an attempt to violate an arms export act, but not to criminalize a conspiracy to.

[00:07:41] Speaker 04:
Because the conspiracy was already criminalized. And it's a much bigger reach to say that Congress intended an additional conspiracy offense when there already was a conspiracy offense that applied. So the general conspiracy statute served to prevent conspiracies.

[00:08:01] Speaker 01:
371, five years, right? Yes, Your Honor.

[00:08:06] Speaker 01:
Now, is this, how do you square that with the, Major questions doctrine has recently been coming out of the Supreme Court. Is this a major questions doctrine?

[00:08:16] Speaker 04:
I don't believe this case is a major question, and I believe the major question doctrine is analogous.

[00:08:25] Speaker 04:
I think the analogy here is the rule of lenity. We're not dealing with the executive addressing a major question as far as adding the conspiracy statute, but the statute needs to be... To the extent the statute's ambiguous, and here it's more than ambiguous. It's absolutely silent as to conspiracies. The statute should be construed in favor of the defendant, which in this case would mean the general conspiracy statute serves to criminalize that conduct, not the additional one that was created by the executive.

[00:09:02] Speaker 03:
Well, you know, when you read this regulation...

[00:09:08] Speaker 03:
22 CFR 127.1, violations.

[00:09:17] Speaker 03:
It starts off with A, without first obtaining the required license or other written approval from the Directorate of Defense Trades Controls.

[00:09:26] Speaker 03:
It is unlawful.

[00:09:28] Speaker 03:
Then we go down to 4.

[00:09:31] Speaker 03:
And it says to conspire, to export, import, re-export, re-transfer, furnish, or cause to be exported, imported, re-exported, re-transferred, or furnished. Any defense article, technical data says – all that struck me is maybe for this particular industry that's involved in the exportation or importation or whatever you want to call it, military items – They just want to be very specific and to alert people that it's a crime, that it's unlawful to conspire to do any of these things.

[00:10:13] Speaker 03:
As opposed to the general conspiracy statute that applies across the board to any crime.

[00:10:20] Speaker 04:
I see, Your Honor. That would – I'd say the distinction there is that it not only puts people on notice – it quadruples the statutory maximum and eliminates the requirement of an overt act. And that's the difference between the regulatory conspiracy offense and the general statute.

[00:10:40] Speaker 03:
But the violation here is actually a violation of the statute, correct?

[00:10:45] Speaker 04:
If the regulation is valid, then committing a conspiracy becomes a violation of the statute, yes.

[00:10:52] Speaker 04:
That's true.

[00:10:53] Speaker 03:
In the scheme of things, this is a pretty serious offense, correct?

[00:10:57] Speaker 04:
Yeah, it's pretty serious. He received 108 months for it.

[00:11:01] Speaker 03:
But, I mean, just in the nature of what was going on.

[00:11:07] Speaker 04:
Exporting defense articles, and these were, I believe they were parts for rifle scopes that allowed you to see in the dark.

[00:11:18] Speaker 03:
Right, night scopes.

[00:11:19] Speaker 04:
It is exporting weaponry.

[00:11:23] Speaker 04:
that the executive branch has deemed should not be exported without a license, that's indisputable.

[00:11:28] Speaker 01:
Also, heat-seeking manufacturers. In other words, to find out whether the troops behind the bushes.

[00:11:38] Speaker 04:
In the dark, yes. Yes, that's true. It would allow people to. Thermal stuff. Yeah. Okay.

[00:11:47] Speaker 04:
Yes.

[00:11:47] Speaker 02:
Do you want to save the rest of your time for rebuttal?

[00:11:49] Speaker 04:
Yes. Thank you.

[00:11:58] Speaker 00:
May it please the court, Elizabeth Barringer for the United States.

[00:12:02] Speaker 00:
This court should affirm the denial of the 2255 motion for either of two alternative reasons. First, the defendant failed to overcome the presumption that his counsel provided competent assistance at trial. And second, he failed to demonstrate prejudice. And I'm going to address the deficiency prong first.

[00:12:24] Speaker 00:
Even assuming... Like, we're not evaluating the validity of the statute in the first instance. This is, of course, couched in a Strickland claim.

[00:12:32] Speaker 01:
Are you abandoning the untimely nature of the filing?

[00:12:35] Speaker 00:
Certainly not, Your Honor. Would you like me to address that to start with?

[00:12:38] Speaker 01:
It's up to you.

[00:12:39] Speaker 00:
Okay. Well, I will. Just a few points is that, of course, this court may affirm for any reason supported by the record. It can affirm the denial of the 2255 regardless of the court's reasons. And even the court acknowledged it was assuming for argument's sake only that it was timely. Two, it's the defendant's burden. It's undisputed that the motion was untimely. Everyone agrees on that. It's about, now we're talking about equitable tolling, which is the defendant's burden to establish. And as the court has recognized, there's no evidence that that was the only way he found out about the Supreme Court's decision is from logging on to PACER from From his home, he got a letter.

[00:13:20] Speaker 02:
Let's assume that it was the only way. Looking at the docket is the only way he knew anything about the action of the Supreme Court. Then what?

[00:13:28] Speaker 00:
Even assuming that's true, this court's decision in Raspberry would decide that miscalculating the date and misunderstanding when his filing is due is not extraordinary compelling reasons. And just to point out that the extraordinary and compelling reasons, sort of his misreading of the statute, it also has to cause the untimeliness. But that's not what caused the untimeliness. It's that he handed it off to a third party who delivered it late. So for those reasons, we would. Can I just ask you a couple of questions on this?

[00:13:57] Speaker 03:
Sure. Case that is. Do we know was was he pro se in his petition for certiorari to the Supreme Court?

[00:14:07] Speaker 00:
I he was represented on appeal, but I am. Oh, you know, he actually motioned this court. to appear pro se for his direct appeal, and I think this court granted it. So I believe – I'm not exactly sure. I would have to follow up on that.

[00:14:22] Speaker 03:
Did you get a copy of the Supreme Court's letter?

[00:14:27] Speaker 00:
I personally did not, but it is in the record. It is in the record. It is on the docket.

[00:14:32] Speaker 03:
And does it – do you happen to recall – well, the letter itself does not appear on our docket, on the Ninth Circuit docket.

[00:14:38] Speaker 00:
No, in the district court docket. It was entered in the district court docket with the date on top of it. And it's also mailed from the Supreme Court to the defendant's last known address.

[00:14:48] Speaker 03:
Let me just check one thing here. I just want to see one thing. The district court docket, you say that the letter is on the docket?

[00:14:58] Speaker 00:
I believe that the copy of the – I don't want to say something for sure, but I believe when I was reviewing this case, when I click on the link on Pacer for the district court docket, the letter popped up from the Supreme Court clerk. But I don't want to say that for sure because it's been a long time. So I would have to review that.

[00:15:16] Speaker 02:
I haven't gone back and looked at the district court docket in preparation for today either. Is it also on the docket that the district court mailed it to the parties, to a party who doesn't have electronic service?

[00:15:27] Speaker 00:
I don't know about the district court, but the Supreme Court would have mailed it to the parties. The Supreme Court would have sent a letter to the parties. To counsel.

[00:15:36] Speaker 00:
Well, I'm going to have to follow up on that and provide the court more information about that. I don't have that information right now, but I will follow it up.

[00:15:46] Speaker 03:
If they send him a letter, then there's really nothing here. You read this entry at 539, you know, you kind of have to understand how to read these dockets because it is a little confusing.

[00:15:59] Speaker 00:
Well, there is, I would just like to point out, the court the fact that there's no evidence in the record that he did not receive a letter from another source. There isn't any evidence of that. And this is his burden to establish extraordinary and compelling reasons. He has not said he wasn't provided by either a counsel or for the Supreme Court any sort of letter.

[00:16:16] Speaker 03:
I just remember from reading his affidavit that he said that he read the docket entry and it was he took the dates from the docket entry.

[00:16:29] Speaker 00:
Well, I would argue that this court's decision, Raspberry would control that, that his misapprehension of what the deadline was does not establish extraordinary and compelling circumstances. I guess that's the best I can offer, and I can also look into that issue. Okay. But moving along to the deficiency prong, even assuming that there was some sort of legal validity to this motion, which the government disputes, counsel is not ineffective for failing to raise every non-frivolous argument. And we know from Primo that counsel's failure to take some sort of action is only deficient when no reasonable counsel would think it would fail.

[00:17:07] Speaker 00:
And that's not true here. That's not true that no reasonable counsel would think it would fail. In addition to the comments mentioned by the court, there's a uniform holdings from three circuits to have addressed this issue. that when Congress delegated this broad authority to the executive to control the export of defense articles and to issue regulations to control the export of defense articles, that broad delegation included authority to prohibit more than just the substantive violation. So we know that from case law. Not only do we know that from Garola Garcia, but Sue, the Fourth Circuit decision, sort of adopted Garola Garcia's reasoning into the modern age with the Armed Export Control Act.

[00:17:47] Speaker 00:
So that's The uniform finding, the defendants never pointed to one case that would contradict that finding. And given this interpretive consensus that 2778 authorizes crimes beyond just a substantive violation, a competent attorney could have believed it would fail. But in addition to just this idea that it was likely to fail under current case law, this motion to dismiss in this context served very little purpose. And this is why.

[00:18:17] Speaker 00:
We have a defendant charged with seven counts. We have the conspiracy, the Armed Export Control Act conspiracy, but we also have the money laundering counts, which carried a 20-year statutory maximum.

[00:18:28] Speaker 01:
It was a conspiracy count which he pleaded guilty.

[00:18:33] Speaker 00:
He pleaded guilty to the substantive offense of money laundering. And then there was a bank fraud conspiracy, two substantive bank fraud counts. I'm just talking about what's charged, not what he pled guilty, and the aggravated identity theft. So His counsel was facing seven charges. The export conspiracy was actually the least serious charge with the lowest statute. I mean, the 1028 had a lower, it was an additional two years. But the bank frauds were very serious charges. And then at sentencing, defense counsel would have realized that those counts would have all been grouped for sentencing.

[00:19:12] Speaker 00:
And they were actually grouped under the money laundering clause. statute under 2S1.1, and so the money laundering counts were going to carry the day and issue the same sentence regardless of this conspiracy to export. So even if he had filed a motion dismissed, got that charge dismissed, the government would have re-indicted with the conspiracy count with the five-year statutory maximum, but all of the sentences ran concurrent. So it just wasn't any bang for the buck to file this motion.

[00:19:44] Speaker 01:
I think that he pleaded guilty to counsel 10 and 11, which were conspiracy to export defense articles and not export defense articles. Isn't that what he did?

[00:19:55] Speaker 00:
So count nine was the conspiracy to export count. Counts 10 and 11 were just money laundering. One was a promotion and one was a promotion. And then there was one of, you know, concealment. So two different money laundering counts. And then the The underlying crime for the money laundering was exportation of not conspiracy, but the actual exportation.

[00:20:19] Speaker 01:
You're right.

[00:20:20] Speaker 00:
Okay.

[00:20:21] Speaker 01:
I misspoke.

[00:20:22] Speaker 00:
So that's under the deficiency prong. Not only could the defense not show that no reasonable attorney would have thought the motion would have failed, but there were also strong tactical reasons why defense counsel would. And I would like to point the court's attention to ER 378 and 386.

[00:20:39] Speaker 00:
That was a pleading file by counsel in the context of the motion to withdraw at sentencing, where there was a declaration by one of the two co-counsels that represented Mr. Morgofsky by the sentencing phase. And they explained that they'd performed substantial research in connection with the defendant's theory of his defense, and they found that it was not supported by current precedent. And as this court found in Strickland, informed decisions after thorough investigation are virtually unchallengeable. So it was their assessment based on their review of the case law, that it was not a viable defense, and also they had good reasons because he had all these other charges pending.

[00:21:16] Speaker 00:
There wasn't really any reason it would help him. So I did, if there are any questions about deficiency, move a little bit into the prejudice prong because, of course, he has to prove both.

[00:21:27] Speaker 03:
I have just one question. Why was it necessary to rely on this particular conspiracy provision rather than the general one?

[00:21:38] Speaker 00:
Well, Your Honor, there's over 100 conspiracy statutes, and often those conspiracy statutes give a higher statutory maximum, and especially in the area like this of national security, as the Supreme Court recognized in Ionelli, sometimes a concerted action by people is just as or even more dangerous than the substantive offense, and Congress has recognized that in the area of national security.

[00:22:05] Speaker 00:
It's just like 233...

[00:22:08] Speaker 00:
What's another one? 2339B, Congress often authorizes much higher statutory maxims with no overt act requirement in this field, recognizing the severity of the crime, that it's a really serious and probably more than just the standard five-year stat max for the conspiracy statute.

[00:22:26] Speaker 03:
You could have, let me ask you, is it any easier for you to file a conspiracy charge under this particular provision as opposed to the general one? In what's required to be proved at trial?

[00:22:40] Speaker 00:
I'm acting beyond the record right now, but I would say that it would probably be easier to prosecute this crime because there's no overt act requirement, but also it's more advantageous because you get the 20-year statutory max, so it sort of encompasses the severity and the seriousness of the charges in a way that perhaps 371 does not.

[00:22:59] Speaker 03:
I see.

[00:22:59] Speaker 00:
I mean, there's many. I mean, we had...

[00:23:02] Speaker 00:
A couple cases, there was one in the Ninth Circuit and one in maybe the Seventh Circuit that was cited in our brief about the kidnapping statute. What are the reasons that a prosecutor would charge 371 versus a conspiracy under the kidnapping statute? And that's a matter of prosecutorial discretion. Many elements go into that decision, and it probably depends just a lot on the prosecutor's discretion.

[00:23:23] Speaker 01:
Was there any discussion sentencing that 371 does require an overt act, but this statute does not?

[00:23:31] Speaker 00:
This statute does not require an overt act, and 371 does.

[00:23:35] Speaker 01:
I know, but was that mentioned to the defendant at sentencing when he was read the elements of the offense?

[00:23:45] Speaker 00:
I would have to follow up on that, but I believe his defendant waived the reading at the change of plea of the offense. But this, I mean, he did raise whether his plea was knowing and voluntary in his first direct appeal. He said, these charges are very complex. I didn't really understand them. I didn't really knowing involuntarily decide that. And this court rejected it and said that the records show that his plea was knowing involuntary and that he did understand the elements of the offense. And I can see when you look at the record as a whole, this is a very sophisticated defendant. He was very aware of what was in the indictment.

[00:24:18] Speaker 00:
And just to touch on this for the prejudice. Oh, see, my time is expiring. But, you know, if you look at the Hill test, no shame. whether there's a showing of a reasonable probability the defendant would have not pleaded guilty if he'd known about this. The defendant knew about this argument before he pleaded guilty, and we know that from 4ER605. That's at the sentencing where he says, I've had disputes with my attorney all along. We've had disputes about this very issue about whether the statute authorizes this regulation. But he still pleaded guilty, and he never sought to withdraw his plea.

[00:24:51] Speaker 00:
So under those facts, how could he possibly prove that there's a reasonable possibility probability he would not have pled guilty. Also, when we looked at Primo, it looks to what would have happened at trial to this defendant. And for the reasons I already stated earlier, he can't show he'd been any better off going to trial. His sentence would not have been longer. This, whether it was a 108-month sentence or a 60-month sentence on this specific count for count nine, he was still exposed to that 108 concurrent sentence for the money laundering counts.

[00:25:22] Speaker 00:
So he just can't prove prejudice. Prejudice is actually The thing he can prove the least in this entire case is prejudice.

[00:25:35] Speaker 00:
And also, as far as prejudice, there's no dispute in this case that he was guilty of exporting defense articles. There's no dispute about that. It's just about what the stat max would be.

[00:25:48] Speaker 00:
And unless the court has any additional questions, I...

[00:25:54] Speaker 00:
would just ask the court to affirm the denial of the 2255 motion.

[00:25:59] Speaker 02:
Thank you, counsel.

[00:26:10] Speaker 04:
Judge Bea, to address your question, I'm certain that when he pleaded guilty, there was no discussion about the difference between the general conspiracy statute and the regulatory conspiracy. the lack of the overt act or the different statutory maximum. That wasn't discussed during his plea.

[00:26:33] Speaker 04:
Judge Paez, to your point, I had a chance to look at the docket entry. I believe looking at that docket entry, I think anyone would read it as saying that the cert petition was denied on October 13th.

[00:26:47] Speaker 04:
And it's quite plausible he did that. I think the only difference is an attorney would not have relied on the district court docket to determine when the Supreme Court had denied cert. But he alleges that he did.

[00:27:01] Speaker 02:
Do we know how he would have accessed that docket?

[00:27:05] Speaker 04:
What's that?

[00:27:06] Speaker 02:
How would he have accessed the district court docket to see that notation? I have it on my – No, but how would he do that? Would he do that in the law library, in the prison? How would he see the docket?

[00:27:16] Speaker 04:
I assume he would have received a paper copy of it.

[00:27:23] Speaker 04:
Of the docket? Of the docket, yes.

[00:27:25] Speaker 02:
When?

[00:27:26] Speaker 04:
When he's in prison.

[00:27:28] Speaker 04:
I'm guessing here, to be honest. I don't know how he would have received notice.

[00:27:33] Speaker 02:
I assume his – What I'm getting at is if it turns out that the letter, the Supreme Court's letter is actually attached to that docket entry, then this question about is the docket entry confusing goes away because the letter is right there. So how is he accessing the docket?

[00:27:54] Speaker 04:
I honestly don't know how he accessed the docket. I think that raises an important point, though, that the whole discussion of the statute of limitations does, is that regardless how one comes out on the timeliness question, this is very fact-intensive. And case law says the district court should make that determination in the first instance. If this court decides that this case comes down to the statute of limitations, that's going to decide the question whether it's timely or The district court should make that determination in the first instance.

[00:28:26] Speaker 01:
But doesn't he have to allege facts which are sufficient for the district court to make that determination, and he hasn't done that here?

[00:28:33] Speaker 04:
Absolutely, Your Honor.

[00:28:36] Speaker 04:
I'm saying my point is that if we accept his allegations as true, there is a basis for equitable tolling. It's also equitable, and that's another determination for the district court.

[00:28:49] Speaker 01:
What is the basis for equitable tolling, given your best shot?

[00:28:53] Speaker 04:
Well, there's a litany of bases. In his motion for equitable tolling, he filed a written motion for equitable tolling and went on for many pages about the conditions in the prison and how he'd been prevented from filing on time, and he had serious health problems.

[00:29:13] Speaker 01:
Were any of those extraordinary?

[00:29:15] Speaker 04:
What's that?

[00:29:16] Speaker 01:
Isn't that the issue? Extraordinary circumstances? Were any of those allegations extraordinary?

[00:29:22] Speaker 04:
I believe when you consider the totality of the circumstances and the fact that we're talking about eight days that he missed the deadline, I believe there's a strong case for the district court in its discretion deciding that equitable tolling is warranted.

[00:29:43] Speaker 04:
I have no idea how the district court would come out on that, but I think there would certainly be a basis to find equitable tolling potentially. I mean, it depends on how the facts come out and what you believe about what he said.

[00:29:57] Speaker 02:
All right. We've taken over your time. Are there any other questions from my colleagues?

[00:30:01] Speaker 04:
I don't think so.

[00:30:03] Speaker 02:
All right. We appreciate counsel's representation in this matter. United States v. Morgofsky is submitted for decision.

[00:30:10] Speaker 01:
Thank you.

[00:30:10] Speaker 02:
We're in recess.