[00:00:00] Speaker 02:
The next case for argument is United States versus Dittmer, docket 22-4095.

[00:00:07] Speaker 02:
Counsel, you look prepared to begin.

[00:00:10] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:12] Speaker 00:
My name is Kathleen Shudd, and I represent the appellate, Mr. Jason Dittmer.

[00:00:16] Speaker 00:
Mr. Dittmer's guilty plea plainly was not knowing and voluntary, and so it must be vacated.

[00:00:21] Speaker 00:
When Mr. Dittmer entered his guilty plea in January 2022, he did so without understanding that in order to obtain a conviction, the government would be required to prove that the obstructive proceeding either was federal in August 2021 or that it was likely to become federal at that time.

[00:00:37] Speaker 00:
He did not, in other words, understand the way the nexus requirement applied to his case.

[00:00:42] Speaker 02:
And with all of that, how does plein air affect things?

[00:00:46] Speaker 00:
Your honor, I do believe this error is plain and I'm happy to walk through it.

[00:00:50] Speaker 02:
So you can see you have to make it plain.

[00:00:52] Speaker 00:
This is now preserved below, so we are on the plain error subject to plain error.

[00:00:56] Speaker 02:
You can go ahead and continue and we'll pick it up.

[00:00:59] Speaker 00:
So I believe this error is plain because it's clear or obvious under current well-settled law specifically.

[00:01:05] Speaker 00:
It's clear that the Nexus is an element of the 15C1 offense from this court's decisions in Phillips and Sutton.

[00:01:14] Speaker 00:
So Phillips makes clear that Nexus applies to 1512C1.

[00:01:18] Speaker 00:
And Phillips's court held that Nexus applies to the parallel obstruction of justice provision located in 1512 C2, focusing on the use of the term corruptly, as well as the Supreme Court's application of Nexus to similar obstruction offenses.

[00:01:31] Speaker 00:
And that reasoning just squarely applies to 1512 C1.

[00:01:34] Speaker 00:
It's not using similar language.

[00:01:36] Speaker 00:
It's using literally the same word, corruptly.

[00:01:38] Speaker 00:
These are two parallel provisions.

[00:01:40] Speaker 00:
which are meant to be read together and it's also a federal obstruction offense.

[00:01:44] Speaker 00:
And notably the government agrees that Nexus applies to this offense.

[00:01:49] Speaker 00:
And then Sutton, which came out a few months after Mr. Dittmer's guilty plea, this course clarified the Nexus requirement in two important ways.

[00:01:58] Speaker 00:
First, it made clear that Nexus requires proof that the defendant contemplated a specific proceeding that either was federal or reasonably likely to become federal at the time of the obstructive conduct.

[00:02:10] Speaker 00:
So it's not sufficient for the proceeding just to become federal later.

[00:02:13] Speaker 00:
There's a focus on what was true at the time that the obstruction occurred.

[00:02:18] Speaker 00:
And second, it also makes clear that the mere possibility that a state proceeding will become federal due to overlapping jurisdiction is not enough.

[00:02:25] Speaker 00:
The government has to prove a reasonable likelihood.

[00:02:29] Speaker 00:
And it's, of course, plain that the failure to inform Mr. Dittmer of an element of the offense would render his plea involuntary, and that's from this court's decision in Hicks and Supreme Court decisions.

[00:02:43] Speaker 00:
So I think that's why this error is plain.

[00:02:47] Speaker 00:
And then that plain error affected Mr. Dittmer's substantial right to cut rights.

[00:02:52] Speaker 00:
because the obstructed proceeding in this case was a state proceeding in August 2021.

[00:02:57] Speaker 00:
And the record doesn't contain any indication that it was likely to go federal at that time.

[00:03:02] Speaker 00:
So recall that Mr. Dittmer made the phone calls at issue while he was in local jail facing state charges in August 2021.

[00:03:11] Speaker 00:
The state charges were based on his conduct in selling between 0.1 grams and 17.5 grams of heroin and meth.

[00:03:19] Speaker 02:
And that's a lot.

[00:03:20] Speaker 02:
That's something that can get you federal charges.

[00:03:23] Speaker 00:
Sure.

[00:03:25] Speaker 00:
It's possible to be federally charged.

[00:03:27] Speaker 00:
And as the government points out, once you get above, I believe, 15 grams, you're subject to the mandatory minimum.

[00:03:32] Speaker 00:
But this court would make clear in

[00:03:37] Speaker 00:
In Phillips, that the mere quantity of a drug conspiracy, the magnitude of a drug conspiracy isn't enough to show the reasonable likelihood.

[00:03:44] Speaker 00:
That just shows there's a possibility of federal prosecution.

[00:03:47] Speaker 02:
And again, I thought in Phillips, the court said that there was enough because there had been a couple of arrests and there were drugs, but there wasn't a whole lot of knowledge that it was going to be a federal proceeding.

[00:03:58] Speaker 00:
Apologies, Your Honor.

[00:04:00] Speaker 00:
I got Phillips and Sutton.

[00:04:01] Speaker 00:
So in Sutton, this court says that the magnitude of a drug conspiracy can't show the reasonable likelihood.

[00:04:07] Speaker 00:
And I believe that the drug conspiracy in Sutton was much greater.

[00:04:11] Speaker 00:
And then I think what Your Honor is getting at is that in Phillips, this court found the nexus requirement was satisfied, even though the defendant in that case didn't know that the investigation he was interfering with was a federal investigation.

[00:04:26] Speaker 00:
But I think that's actually a very different issue than what we have here.

[00:04:29] Speaker 00:
Because in Phillips, by the time that the defendant engaged in the obstructive conduct, it was already a federal investigation.

[00:04:36] Speaker 00:
The DEA was involved.

[00:04:37] Speaker 00:
There was federal wiretaps.

[00:04:38] Speaker 00:
There were federal search warrants.

[00:04:40] Speaker 00:
And so the issue there wasn't whether the investigation or proceeding actually was federal.

[00:04:45] Speaker 00:
It's just what the defendant knew about it at the time.

[00:04:47] Speaker 02:
Well, Sutton wasn't drugged.

[00:04:49] Speaker 02:
Sutton was beating up a person in jail.

[00:04:53] Speaker 00:
The proceeding at issue in Sutton was in fact a federal drug conspiracy, and so the facts are sort of complicated, but basically this all happened at a local jail.

[00:05:04] Speaker 00:
Somebody had snitched, was reputed to be a snitch, and so the person who had snitched on told the defendants, I want you to beat that guy up.

[00:05:13] Speaker 00:
The person who told the defendants that the victim was a snitch

[00:05:19] Speaker 00:
was in this local jail facing state charges for a drug conspiracy.

[00:05:24] Speaker 02:
And it is so attenuated in that case because the people who beat him up didn't even know what the charge was, at least from what I can tell out of the case.

[00:05:34] Speaker 02:
But instead it was, we're doing you a favor, this guy ratted on you, and we're anti-rat patrol.

[00:05:42] Speaker 00:
It's true that they had less of a relationship with the drug conspiracy in that case.

[00:05:48] Speaker 02:
It's a lot less than having 14.8 grams of methamphetamine being caught in other episodes of drugs.

[00:05:54] Speaker 00:
Of course, but when this court says that the magnitude of the drug conspiracy is not enough to establish that the proceeding is federal or likely to become federal.

[00:06:02] Speaker 02:
Are you saying if it had been 500 grams of heroin that that wouldn't be enough?

[00:06:06] Speaker 00:
Your Honor, I'm not the one who says that that's what Sutton says, that the magnitude of a drug conspiracy standing alone is insufficient

[00:06:12] Speaker 02:
I don't see that in Sutton.

[00:06:16] Speaker 00:
I believe that Sutton says that this court addresses the argument raised by the government that the magnitude of the drug conspiracy should satisfy the requirement to show that the proceeding is likely to become federal.

[00:06:29] Speaker 02:
But if you say that there's no limit and that the magnitude is irrelevant,

[00:06:35] Speaker 02:
then you can't ever show that there's a likelihood of a federal proceeding that hasn't already been filed.

[00:06:43] Speaker 00:
I disagree.

[00:06:44] Speaker 00:
So in Sutton, this court says that the magnitude itself is merely speculative.

[00:06:47] Speaker 00:
You would need to show something else, showing a relationship between the magnitude.

[00:06:51] Speaker 00:
You can't just rely on assertion that this is a big drug conspiracy.

[00:06:55] Speaker 00:
Second, I think a really important point to make is that the requirement that the proceeding be likely to become federal, it's not about what the defendant knows.

[00:07:04] Speaker 00:
It's not a subjective requirement.

[00:07:05] Speaker 00:
because as 1512 G1 provides, the government doesn't have to provide state of mind with respect to the federal nature of the proceeding.

[00:07:14] Speaker 00:
This is an objective requirement that the proceeding either has to be federal at the time of the obstructive conduct or it has to objectively be the case that it's likely to become federal.

[00:07:24] Speaker 00:
And again Sutton says that this, the showing that the proceeding is likely to become federal can't be made based on drug quantity alone and again I think

[00:07:34] Speaker 00:
Although 15 grams of methamphetamine is a significant quantity of methamphetamine, it's not so significant as was an issue in Sutton and Phillips, for example.

[00:07:45] Speaker 00:
In that case, the drug conspiracy involved multiple pounds of methamphetamine and not just multiple pounds of methamphetamine, but actually was being investigated by federal agents.

[00:07:56] Speaker 00:
and federal warrants.

[00:07:56] Speaker 00:
And the reason for this is because, as Sutton makes clear, there's a necessity to give some substance to the federal, the requirement that the proceeding be federal in nature in order to avoid federalizing broad swaths of conduct.

[00:08:11] Speaker 00:
That's not the purpose of the statute.

[00:08:13] Speaker 00:
It's targeted at federal obstruction of justice.

[00:08:16] Speaker 02:
Let me pause you for one second.

[00:08:19] Speaker 02:
And an important point that I don't know the answer to on the subjective versus objective.

[00:08:24] Speaker 02:
And I've read these cases and I've been up and down every staircase in them.

[00:08:29] Speaker 02:
But it's the, and I wonder about subjective objective because I know 1512 G says you don't have to have a prove the state of mind as far as it being a federal proceeding.

[00:08:42] Speaker 02:
And yet in Sutton, which I'll read some of that,

[00:08:46] Speaker 02:
It says, it concludes that Mr. Bridges had given information to a state police officer who obtained a search warrant and Mr. Jones had been arrested on state charges.

[00:08:56] Speaker 02:
Even if we assume Mr. Sutton and Mr. Segway were aware of these facts, the government presented no evidence, and here's what the government had to prove the evidence, show evidence, that they had contemplated a federal proceeding

[00:09:10] Speaker 02:
or it was reasonably likely the contemplative proceeding would have been federal.

[00:09:15] Speaker 02:
Now my question to you is,

[00:09:18] Speaker 02:
Based on the fact, is it an objective test?

[00:09:20] Speaker 02:
Here's all these facts that this person knew.

[00:09:23] Speaker 02:
What would a reasonable defendant in that position understand that it might go federal?

[00:09:28] Speaker 00:
Is that the test?

[00:09:30] Speaker 00:
I agree it's confusing, and I've read it many times.

[00:09:33] Speaker 00:
And my conclusion is it's both an objective and a subjective test.

[00:09:36] Speaker 00:
So you have to subjectively be thinking of a specific proceeding.

[00:09:40] Speaker 00:
And I think in this case, everyone agrees.

[00:09:43] Speaker 00:
Mr. Gimmer was thinking of his drug case.

[00:09:46] Speaker 00:
He was in jail.

[00:09:46] Speaker 00:
He was facing state charges.

[00:09:48] Speaker 00:
And then the question of whether that proceeding is in fact a federal proceeding, that is an objective question.

[00:09:55] Speaker 00:
So it either has to actually be a federal proceeding at the time.

[00:09:58] Speaker 00:
So that's the Phillips case, right, where everyone knows he was thinking of a specific drug investigation, but he just didn't know it was federal.

[00:10:07] Speaker 00:
He didn't know the agents were working with federal prosecutors.

[00:10:10] Speaker 00:
And Sutton does make this clear, is that if you were contemplating a specific proceeding and you were just mistaken,

[00:10:16] Speaker 00:
about it being a state proceeding, rather than a federal proceeding.

[00:10:20] Speaker 00:
Under 1512 G1, that's not exculpatory.

[00:10:23] Speaker 00:
You're still in trouble because you, with the requisite mens rea, interfered with a proceeding that, in fact, was federal.

[00:10:33] Speaker 02:
And in this case... Let me ask you this.

[00:10:35] Speaker 00:
Sure.

[00:10:36] Speaker 02:
And maybe that you can summarize this, which is, what would it have taken for the government to prove discharge against your client?

[00:10:45] Speaker 00:
I think there's a couple of different things they could have shown.

[00:10:48] Speaker 00:
If they could show the kind of evidence there was in Phillips that in August, 2021, unbeknownst to Mr. Dittmer, there was already federal prosecutors involved.

[00:10:56] Speaker 00:
Maybe the federal grand jury was already meeting something to show it was already a federal proceeding at that time.

[00:11:02] Speaker 00:
Or if they could show, you know, and I don't, I think again, Sutton is clear the mere quantity of the drugs isn't enough.

[00:11:10] Speaker 00:
notwithstanding the fact that it's enough to qualify for the five-year manment, I don't consider these to be really massive quantities of drugs.

[00:11:20] Speaker 00:
Something to show at least a concrete relationship between this offense and the likelihood of federal prosecution.

[00:11:26] Speaker 00:
And I think what wouldn't be enough, right, is if it turned out that Mr. Dittmer was prosecuted federally because

[00:11:34] Speaker 00:
for something that happened after this.

[00:11:37] Speaker 02:
Do you agree that he possibly could have been convicted?

[00:11:44] Speaker 00:
I think we don't know all the evidence in this case.

[00:11:48] Speaker 02:
Based on the evidence we have, which is considerable, he's been stopped several times, he's caught with a significant amount of methamphetamine, could a jury say

[00:12:00] Speaker 02:
an objective defendant in your position, using an objective reasonable standard, would foresee that might likely go federal, therefore we convict?

[00:12:10] Speaker 00:
No, Your Honor, because again, the question isn't, you know, we use the term foreseeability, but as Sutton makes clear, it's a reasonable likelihood test, and that's objective.

[00:12:17] Speaker 00:
It's not about what Mr. Dittmer knew.

[00:12:19] Speaker 00:
And secondly, Sutton says the mere quantity isn't enough.

[00:12:23] Speaker 00:
So again, you would need something more than just the fact that this is 15 grams of drugs.

[00:12:29] Speaker 00:
Second, I think we're getting a little bit into the third problem.

[00:12:36] Speaker 00:
Again, Mr. Dittmer's burden is merely to show he has a plausible defense.

[00:12:39] Speaker 00:
I think Perez is actually really clear on this.

[00:12:42] Speaker 00:
He doesn't have to show that he's innocent or that he would certainly prevail at trial.

[00:12:46] Speaker 00:
All he has to show is that the evidence against him is not so strong that he would have had no choice but to plead guilty.

[00:12:51] Speaker 02:
And on these facts... I don't know about that.

[00:12:53] Speaker 02:
Dominguez Benitez doesn't say that.

[00:12:56] Speaker 02:
It says, would it make sense for this defendant to go back there and withdraw his plea?

[00:13:01] Speaker 02:
And if it doesn't make sense, the court says, sorry, you lose on prong three.

[00:13:05] Speaker 02:
It's my understanding.

[00:13:06] Speaker 00:
Your Honor, I believe the language that the evidence is not so strong that he has no choice but to plead guilty is from Perez Perez.

[00:13:14] Speaker 00:
And again, I think he does have a plausible defense, certainly given that the Sutton defendants, their convictions were reversed for sufficiency of the evidence.

[00:13:21] Speaker 00:
So given the evidence in this record, Mr. Dittmer may have had a plausible defense to the charge of federal obstruction of justice, and that is enough to meet his third-pronged standard of saying that he may not have pled guilty to this, may not have accepted this plea agreement.

[00:13:36] Speaker 00:
And I'd like to, if there's no further question, I'd like to reserve the remainder.

[00:13:39] Speaker 04:
I have a question.

[00:13:40] Speaker 04:
Just a minute, I have a question.

[00:13:42] Speaker 04:
Was there at any time

[00:13:43] Speaker 04:
in the continuum of the investigation that it was a joint task force investigation?

[00:13:50] Speaker 00:
Your Honor, it was a drug task force investigation.

[00:13:53] Speaker 00:
There's no facts in the record about how frequently the drug task force investigations resulted in federal prosecutions.

[00:14:00] Speaker 00:
And I think at a minimum, there would have to be something along those lines.

[00:14:03] Speaker 04:
But isn't the fact that it was joint raise reasonable possibility that there could be a federal proceeding?

[00:14:10] Speaker 00:
Your Honor, I disagree.

[00:14:11] Speaker 00:
Again, I think

[00:14:13] Speaker 00:
Sutton is clear that the mere possibility that an offense can be prosecuted federally is not enough to show reasonable probability.

[00:14:20] Speaker 00:
And in Sutton, there was, in fact, a federal investigation at the same time that the person engaged in the obstructive conduct.

[00:14:27] Speaker 00:
So based on this court's case law, the government would need something more.

[00:14:31] Speaker 04:
So you can say Sutton takes care of every problem on this, takes care of the drug quantity problem, and it takes care of the joint task force investigation.

[00:14:39] Speaker 00:
Yes, Your Honor, I think under something there would have to be some specific reason saying that this case is reasonably likely to go federal.

[00:14:47] Speaker 00:
Thank you, Your Honor.

[00:15:05] Speaker 01:
Good morning and may it please the court.

[00:15:06] Speaker 01:
I'm Joseph Palmer from the Justice Department.

[00:15:10] Speaker 01:
The district court did not commit reversible plain error in finding that the defendant understood the nature of the obstruction offense to which he pled guilty.

[00:15:18] Speaker 02:
Do you contend the defendant did understand?

[00:15:22] Speaker 02:
Yes.

[00:15:22] Speaker 02:
Even though nobody explained what an official proceeding was?

[00:15:26] Speaker 02:
That makes a dramatic difference.

[00:15:28] Speaker 01:
The key fact that supports this court's presumption that the defendant understood the nature of the offense is the defendant's stipulation

[00:15:39] Speaker 01:
that his conduct obstructed justice by destroying evidence in a federal proceeding.

[00:15:44] Speaker 02:
It doesn't say federal proceeding.

[00:15:46] Speaker 01:
That's correct.

[00:15:47] Speaker 01:
Let me re-correct.

[00:15:48] Speaker 02:
If it said that, we wouldn't be here.

[00:15:50] Speaker 01:
A federal narcotics investigation.

[00:15:52] Speaker 02:
No, no.

[00:15:53] Speaker 02:
It says an official proceeding.

[00:15:55] Speaker 02:
It never says the word federal.

[00:15:57] Speaker 01:
The defendant's fact stipulation, both in his plea agreement and at the plea colloquy,

[00:16:05] Speaker 01:
The defendant stipulated that my conduct obstructed justice by destroying evidence in a federal narcotics investigation.

[00:16:13] Speaker 02:
And there are two pieces there.

[00:16:15] Speaker 02:
Number one, that that's the reality.

[00:16:17] Speaker 02:
And number two, that the government could have proved it if you'd have understood that's what was required.

[00:16:23] Speaker 01:
That's right.

[00:16:23] Speaker 02:
And nobody ever told him that.

[00:16:27] Speaker 01:
Well, that's correct.

[00:16:28] Speaker 01:
He wasn't specifically informed that that was an element, but this court should

[00:16:34] Speaker 01:
applies a presumption that a defendant is informed of the nature of his offense by his attorney when his guilty plea includes facts that establish that requirement.

[00:16:49] Speaker 01:
And in this case, the stipulation, the natural reading of the language destroying evidence in a federal investigation, the natural meaning of those words is that the federal investigation exists at the time of the defendant's

[00:17:03] Speaker 01:
obstruction or at a minimum is reasonably likely to occur.

[00:17:08] Speaker 01:
Now the defense argues that this stipulation isn't good enough because there's a possibility that it can be interpreted to mean that the defendant destroyed evidence in a federal proceeding that didn't exist yet and wasn't likely to exist and may have come into existence in the future.

[00:17:25] Speaker 01:
But that's not the most natural or the most reasonable construction of the words destroying evidence in a federal investigation.

[00:17:33] Speaker 01:
And on plain error review, it's not necessary for the exclusion of every possible interpretation of a stipulation that might take the defendant's conduct outside of the nexus requirement.

[00:17:49] Speaker 01:
It's sufficient for purposes of plain error review that the defendant agreed to a fact stipulation that is clearly designed to establish

[00:17:56] Speaker 01:
a nexus between his conduct and a federal investigation.

[00:18:00] Speaker 01:
That's the purpose for which that language was negotiated between the parties and inserted into the plea agreement and agreed to by the defendant's counsel.

[00:18:11] Speaker 02:
Well, and I take your point, as far as that language being stated in its factual basis, what it says for elements is, with the intent to impair its integrity and availability for use in an official proceeding.

[00:18:25] Speaker 02:
So the defendant is told what's important, what the government's going to have to prove is this.

[00:18:30] Speaker 02:
And then he goes on to say yes to this.

[00:18:33] Speaker 02:
Where do I sign as far as what's been typed out for me on the federal narcotics investigation?

[00:18:41] Speaker 02:
In other words, I see your point.

[00:18:45] Speaker 02:
But at the same time, it just seems like a reasonable and fair way of doing business that before somebody pleads guilty, they understand what the government has

[00:18:56] Speaker 01:
I agree with that general principle.

[00:18:58] Speaker 01:
But what this court's cases say is that the court applies a presumption that the defendant understands what the government is required to approve from his counsel.

[00:19:09] Speaker 01:
And when the defendant is informed of the critical elements of the offense, that he must act correctly, with the intent to impair the evidence for use in an official proceeding, and when he stipulates to facts that establish the nexus requirement in those circumstances on plain error review,

[00:19:26] Speaker 01:
that's sufficient for the court to apply the presumption.

[00:19:28] Speaker 01:
And those facts distinguish this case from the cases where this court has held that the presumption doesn't apply.

[00:19:34] Speaker 01:
In those cases, the defendant hasn't stipulated to any facts that establish the element.

[00:19:39] Speaker 01:
In those cases, there's reason to think that the defendant wasn't advised about the requirement, either because the Supreme Court has reversed the prior understanding of the law

[00:19:53] Speaker 01:
as in the Raheith category of cases where the government has acknowledged that in those cases the defendants can establish the first two prongs of the plain air standard.

[00:20:05] Speaker 04:
Is your position then as to the stipulation that the stipulation means there was first no error?

[00:20:14] Speaker 04:
And second of all, that if there was air, it was not plain because of the way the stipulation is articulated and the district court sitting there wouldn't see that there was a problem.

[00:20:30] Speaker 03:
Is it at your position on both of those problems of plain?

[00:20:32] Speaker 03:
Yes.

[00:20:34] Speaker 03:
Yes, that's our... We agree with that, Your Honor.

[00:20:36] Speaker 03:
So you don't agree there was air?

[00:20:38] Speaker 04:
We don't agree that there was air.

[00:20:40] Speaker 04:
But if there was, the stipulation shows it was not plain?

[00:20:43] Speaker 01:
Correct.

[00:20:46] Speaker 01:
Now, the defense has argued that Sutton represents the kind of change in the law that might rebut the presumption that his counsel explained the nature of the offense to him.

[00:20:58] Speaker 01:
But Sutton isn't like Rahef or the Supreme Court's decision in Boosley where there was prior binding precedent that had said that the requirement didn't exist and then the Supreme Court had reversed it.

[00:21:11] Speaker 01:
Sutton just extended an existing Supreme Court case

[00:21:15] Speaker 01:
to a neighboring provision of the obstruction of justice constellation and argued that this was just a straightforward application of the law.

[00:21:24] Speaker 01:
So Sutton doesn't give rise, it doesn't help the defendant in his attempt to rebut the presumption that he understood the nature of his offense at the time he pled guilty.

[00:21:36] Speaker 04:
Wait a minute, are you saying that Sutton does not say that

[00:21:45] Speaker 04:
drug quantity is not enough?

[00:21:48] Speaker 04:
Are you saying that?

[00:21:52] Speaker 04:
The drug quantity cannot be, or the position is the drug quantity cannot be a tip-off that it might be a federal provision.

[00:22:01] Speaker 04:
Do you dispute that?

[00:22:05] Speaker 01:
We do dispute it as applied to this case, but I think that that's a third prong aspect of Sutton.

[00:22:10] Speaker 01:
I was addressing Sutton's setting forth of the Nexus requirement.

[00:22:16] Speaker 01:
I'll turn now to the third prong.

[00:22:19] Speaker 01:
Our primary argument on the third prong of plain error is that the defendant, even if he had been aware that he had a plausible defense to the obstruction count, that wouldn't have changed his calculation to plead guilty because the strategic consideration for him pleading guilty was relief from sentencing exposure on the drug counts, and in particular, the mandatory minimum sentence

[00:22:46] Speaker 01:
that the government dismissed the count carrying the mandatory minimum and the obstruction count didn't make any difference to the defendant's sentence.

[00:22:54] Speaker 02:
It didn't make any difference to the sentence, but it is a separate conviction that you have obstructed.

[00:22:59] Speaker 02:
And shouldn't it be the defendant who weighs how important that is to the defendant rather than you or me?

[00:23:05] Speaker 02:
In other words, if the defendant says, it's worth an extra 12 months to me on the drug case to serve an extra 12 months, not to have that obstruction count,

[00:23:15] Speaker 02:
Who are we to second guess him on that?

[00:23:18] Speaker 01:
It's the defendant's right to do that, but when we're on plain error, it's the defendant's burden to show that he wouldn't have pled guilty in the first place.

[00:23:26] Speaker 01:
And this court's decision in Perez Perez, the court found that the defendant in that case had a plausible defense to the firearms count, but nevertheless held that he couldn't satisfy the third prong because his guilty plea was structured to avoid mandatory minimum sentence on a drug count to which he'd pled guilty.

[00:23:45] Speaker 01:
And our contention is the same analysis applies here.

[00:23:48] Speaker 01:
The defense has tried to distinguish that analysis by referring to the defendant's motion to withdraw, his pro se motion to withdraw the plea.

[00:23:55] Speaker 01:
That doesn't help the defendant because the motion to withdraw came later.

[00:24:02] Speaker 01:
The fact that the defendant later develops buyer's remorse doesn't go to his reasons for accepting the plea in the first place, which in this case, his strategic position clearly was that the plea agreement

[00:24:14] Speaker 01:
got him out from under the mandatory minimum sentence to which he was otherwise subject and sentencing exposure on the drug counts and the obstruction count wouldn't have made any difference.

[00:24:26] Speaker 01:
In addition, the Defendants' Council below found that the motion to withdraw was frivolous and the defense hasn't disputed that.

[00:24:37] Speaker 04:
But before we go down that road, at the time of the pro se,

[00:24:44] Speaker 04:
attempt to withdraw the plea, he had all these Perez factors before him then, and he effectively said, notwithstanding that, I want to withdraw my plea.

[00:24:55] Speaker 04:
All the Perez factors were present now, correct?

[00:24:59] Speaker 04:
Right.

[00:25:00] Speaker 04:
Yes.

[00:25:00] Speaker 04:
All right.

[00:25:01] Speaker 04:
And notwithstanding that, he wanted to withdraw his plea.

[00:25:04] Speaker 04:
Yes.

[00:25:04] Speaker 04:
Doesn't that suggest that later, again, that there's a reasonable probability he wanted to withdraw that plea?

[00:25:13] Speaker 01:
Yes, I agree, we don't dispute that later he did want to withdraw the entire plea.

[00:25:21] Speaker 01:
But the question for plain error review is what was he thinking at the time that he accepted the plea months earlier?

[00:25:27] Speaker 01:
The motion to withdraw doesn't relate back to his strategic decision to accept the plea unless there's some reason to think that it did.

[00:25:35] Speaker 01:
And in this case, the grounds were frivolous.

[00:25:38] Speaker 01:
And if the grounds for moving to withdraw had somehow related back and questioned the voluntariness of pleading guilty in the first place, then presumably it would have been a colorable motion and his counsel would have been willing to advocate for it below.

[00:25:52] Speaker 01:
But they weren't.

[00:25:53] Speaker 01:
Whether the motion to withdraw affects the original voluntariness of the plea is the key factor in deciding whether a motion to withdraw is warranted.

[00:26:04] Speaker 01:
And in this case, everyone agrees that the motion to withdraw was not.

[00:26:17] Speaker 01:
If there's no further questions, I'll... Oh, I'm sorry, Your Honor.

[00:26:20] Speaker 01:
I want to make just one quick point about the remedy.

[00:26:26] Speaker 01:
In the event that this court determines that the obstruction, that the defendant's guilty plea to the obstruction count is invalid, the court should leave the drug conviction intact.

[00:26:40] Speaker 01:
The defendant's opening brief doesn't challenge the guilty plea as to the drug count.

[00:26:45] Speaker 01:
and doesn't raise any challenge to the validity of the plea agreement.

[00:26:50] Speaker 01:
And in these circumstances, then, the defendant relies on the decision in Baynard, but that decision involved a conditional guilty plea where the defendant reserved his right to withdraw his plea if he prevailed on appeal and he did prevail.

[00:27:09] Speaker 01:
In this case, the defendant hasn't raised any

[00:27:12] Speaker 01:
challenge to the validity of his plea as to the drug count and he hasn't raised any challenge to the original validity of the plea agreement and in these circumstances then the remedy should be in the event that the court determines that the plea to obstruction is invalid to leave the other count in place.

[00:27:31] Speaker 02:
Let me ask you a mirror image question to what I asked the opposing counsel which is if this did go back, this charge went back to district court and defendant maintained not guilty stance

[00:27:44] Speaker 02:
The jury may well say not guilty in this case.

[00:27:47] Speaker 02:
Do you dispute that?

[00:27:50] Speaker 01:
Well, we do dispute that.

[00:27:53] Speaker 01:
We agree.

[00:27:53] Speaker 01:
We think there are already reasons to think that the investigation was reasonably likely to become federal, even though this was a guilty plea and there was no reason to develop a record on this.

[00:28:05] Speaker 02:
Let me just take you through a couple of facts, which is we're trying to measure what's going on in this guy's head.

[00:28:14] Speaker 02:
dealing drugs and a general threat to society down in St.

[00:28:18] Speaker 02:
George, Utah, and well-known to the authorities.

[00:28:21] Speaker 02:
Every time he's picked up, he's released.

[00:28:24] Speaker 02:
He is off on his own again, doing more of the same.

[00:28:27] Speaker 02:
That doesn't sound like someone who would think, oh no, the feds are about ready to grab me by the collar.

[00:28:33] Speaker 02:
Therefore, if I'm on a jury and the defendant says that to me, why would I be compelled to say, sorry, but you're guilty every time, which is what you're saying?

[00:28:44] Speaker 01:
Both sides agree that it doesn't matter what's in his head.

[00:28:47] Speaker 01:
What we would have to prove is objectively, as a matter of real world fact... Based on his facts.

[00:28:57] Speaker 01:
It's got to be based on something.

[00:29:00] Speaker 02:
And if he was released after having 14.8 grams, that would be significant in an objective analysis, would it not?

[00:29:10] Speaker 01:
I think if I understand your Honor's point, yes it would.

[00:29:14] Speaker 01:
But I'm just coming back to you.

[00:29:15] Speaker 01:
I think neither side disputes that even if the defendant had no idea that the DEA was involved in the investigation, if that was true as a matter of fact, then that would establish the nexus requirement.

[00:29:30] Speaker 01:
Thank you, Your Honor.

[00:29:30] Speaker 02:
All right, thank you.

[00:29:39] Speaker 00:
Your Honor, just

[00:29:40] Speaker 00:
A couple of quick points.

[00:29:42] Speaker 00:
I wanted to point, Your Honors, to Perez Perez 992 F3rd at 976 to 977, where this court says that all the defendant has to show is a credible defense.

[00:29:55] Speaker 00:
And where the government's arguments are not so strong that Perez Perez would have had no choice but to plead guilty, the third prong is met.

[00:30:01] Speaker 00:
Now Perez Perez had other factors, but I did want to point the court to that part of the case.

[00:30:07] Speaker 00:
Thank you.

[00:30:08] Speaker 02:
Thank you, counsel, for helpful arguments and a challenging case.

[00:30:12] Speaker 02:
You are excused.

[00:30:13] Speaker 02:
The case is submitted.