[00:00:26] Speaker 02:
Next case this morning is United States versus Valdez 22-3025.

[00:00:35] Speaker 02:
Council for Appellant, if you'd make your appearance and proceed, please.

[00:00:39] Speaker 00:
Good morning, Your Honors.

[00:00:40] Speaker 00:
My name is Paige Nichols and I am here on behalf of the Appellant, Mr. Hector Valdez.

[00:00:46] Speaker 00:
We're here today to try to work out the answer to a single legal question, and that is whether the district court, as a matter of law, erred when it put the burden on Mr. Valdez to show prejudice in order to establish his Sixth Amendment claim.

[00:01:02] Speaker 00:
And before I get into this question about who bears the burden on prejudice here, I want to make crystal clear what this Sixth Amendment claim is.

[00:01:12] Speaker 00:
It is a claim that before Mr. Valdez was sentenced, the prosecution team became privy to his attorney-client communications

[00:01:21] Speaker 00:
intentionally and without a legitimate justification.

[00:01:25] Speaker 00:
So these are the worst kinds of intrusions that we're talking about here when we're asking who bears the prejudice burden in a pre-sentencing intrusion.

[00:01:35] Speaker 00:
These are the kinds of intrusions that rupture the framework of our adversary system,

[00:01:42] Speaker 00:
And this court recognized in Orduno Ramirez that these kinds of pre-sentencing intrusions may pose a significant risk to sentencing proceedings and should be taken seriously.

[00:01:54] Speaker 00:
So how do we know who bears the burden when it comes to prejudice, if prejudice is a necessary part of the calculus here?

[00:02:01] Speaker 01:
Could I just ask, you say there's this single issue of who bears the burden, and however that gets worked out, do you agree that a determination of prejudice is necessary for there to be a violation?

[00:02:25] Speaker 00:
Well, we stand by our original position that even pre-sentencing intrusions should be structural error.

[00:02:31] Speaker 00:
Well, OK.

[00:02:32] Speaker 00:
I just want to make sure that I'm clear about that.

[00:02:33] Speaker 01:
I understand your position there, but let me back up and explain why you've been asking these questions.

[00:02:39] Speaker 01:
Because at one point in your brief, it gets into this.

[00:02:43] Speaker 01:
There's some discussion of.

[00:02:47] Speaker 01:
harmless error, or there's discussion of Chapman and Brecht and so forth.

[00:02:51] Speaker 01:
And so the question I'm getting at is, before you even get there, doesn't there need to be prejudice for there to be a violation?

[00:03:05] Speaker 01:
I don't know if I'm being clear.

[00:03:06] Speaker 01:
Is that?

[00:03:07] Speaker 00:
Yes.

[00:03:08] Speaker 00:
I believe, Your Honor, is being clear about that.

[00:03:11] Speaker 00:
And that no.

[00:03:17] Speaker 00:
But it may not matter for our purposes here.

[00:03:21] Speaker 00:
I say no because, well, for a lot of reasons.

[00:03:28] Speaker 00:
I'm trying to figure out which path to go down first here.

[00:03:38] Speaker 00:
This court in Spathes says these are not Strickland-like claims.

[00:03:47] Speaker 00:
Strickland claims are really the only ones where, the only Sixth Amendment claims, where prejudice is a part of the Sixth Amendment claim itself.

[00:03:56] Speaker 00:
And so we're in a different zone here, where once you have that privy to factor in play, that's where we're claiming the Sixth Amendment error occurs, because it's the intrusion itself.

[00:04:12] Speaker 00:
But for our purposes here,

[00:04:15] Speaker 00:
in this pre-sentencing intrusion area.

[00:04:19] Speaker 00:
It may be semantic, because even if prejudice is part of the Sixth Amendment showing, this court can and should still put the burden on the government to show the absence of prejudice, like other circuit courts have done, the Danielson Court in the Ninth Circuit, the Mastroianni Court in the First Circuit, and the cases they discuss.

[00:04:45] Speaker 00:
The courts seem to consistently recognize that here we have who stands to benefit from this intrusion?

[00:04:53] Speaker 00:
The government.

[00:04:54] Speaker 00:
Who can tell us whether they did benefit from this intrusion?

[00:04:57] Speaker 00:
The government.

[00:04:58] Speaker 00:
That's it.

[00:04:59] Speaker 00:
And if we go directly to Chapman, Chapman tells us,

[00:05:03] Speaker 00:
And we'll talk about Chapman versus Brecht, I'm sure, soon.

[00:05:07] Speaker 00:
But Chapman tells us the beneficiary of the error should be the one who shows that it was harmless.

[00:05:13] Speaker 00:
And by the way, Chapman did involve prosecutorial misconduct.

[00:05:18] Speaker 00:
So I recognize we're in 2255 land here.

[00:05:24] Speaker 00:
And why doesn't that make a difference?

[00:05:28] Speaker 00:
This court has held that Brecht applies to some 2255 claims on finality grounds.

[00:05:36] Speaker 00:
Brecht was a 2254 case.

[00:05:39] Speaker 00:
It had comity concerns in mind and finality concerns.

[00:05:43] Speaker 02:
And not only our court, but the Supreme Court has made clear that Brecht is the governing standard if we ever get there for harmlessness in the 2255 context.

[00:05:52] Speaker 02:
So what does Chapman have to do with this?

[00:05:55] Speaker 00:
Chapman, I think, just sets up the issue in the first instance.

[00:05:59] Speaker 00:
I think in order to understand what we're doing in a 2255, we have to know what we're doing on a direct appeal.

[00:06:05] Speaker 00:
But also, this court could find reasonably that Brecht, I'll say this and then I'll move on to the rest of my Brecht argument, but this court could reasonably find that Brecht doesn't apply in a 2255 to a claim like this, which is only getting its first airing in a 2255 because it was

[00:06:24] Speaker 00:
hidden government misconduct.

[00:06:28] Speaker 00:
But if Brecht does apply, we still should be putting the burden on the government.

[00:06:35] Speaker 00:
This court has said that in a 2255, under primarily the Supreme Court's case in McCannage, which interprets Brecht,

[00:06:43] Speaker 00:
The defendant does not bear the burden of showing prejudice in a 2255.

[00:06:48] Speaker 00:
The burden lies with the government.

[00:06:50] Speaker 00:
This court said so in United States versus Garcia in a published decision has said so in other unpublished decisions that the burden shifts to the government to show

[00:07:03] Speaker 00:
that an error is harmless.

[00:07:05] Speaker 00:
And it's not under the Chapman standard in those cases, but under the Brecht standard.

[00:07:10] Speaker 00:
But it's still the government's burden.

[00:07:12] Speaker 02:
But the category here is not 2255.

[00:07:14] Speaker 02:
The category here is the Sixth Amendment.

[00:07:16] Speaker 02:
And Ordono itself says that the default in the Sixth Amendment context is that the defendant bears the burden.

[00:07:25] Speaker 02:
And going one step further, that default has been applied where the risk of prejudice is much greater, as Ordono says,

[00:07:33] Speaker 02:
than in the context of post plea.

[00:07:38] Speaker 02:
So why doesn't the default apply, a fortiori, here if it would apply in that other context?

[00:07:45] Speaker 00:
Well, I am not sure where this default rule is coming from.

[00:07:51] Speaker 02:
Let's try footnote 6 of Arduino.

[00:07:52] Speaker 02:
And it says that

[00:07:55] Speaker 02:
That has been the principle that has been applied in these cases in the Sixth Amendment context.

[00:08:01] Speaker 00:
And I believe that those sections of Ordino Ramirez are really looking at the Strickland type cases.

[00:08:07] Speaker 00:
And those cases are sort of their own category of cases.

[00:08:12] Speaker 00:
And in Gonzalez-Lopez and the US Supreme Court, the Council of Choice case,

[00:08:20] Speaker 00:
The majority made it clear that Strickland is unique in putting that prejudice burden on the defendant and making it a part of the constitutional violation.

[00:08:31] Speaker 00:
in the first place.

[00:08:32] Speaker 02:
And I apologize.

[00:08:33] Speaker 02:
I was talking about footnote 21, which says in most cases, the defendant alleging a Sixth Amendment violation must show prejudice.

[00:08:41] Speaker 02:
And then it goes on to talk about the fact that generally that has been the principle that has been applied, footnote 21.

[00:08:47] Speaker 02:
And so as it relates to that, if in most cases

[00:08:51] Speaker 02:
the defendant bears the burden in the Sixth Amendment context, in most cases, the risk of prejudice is higher than it is in the post-plea context, then why would, in the post-plea context, one, not apply that general principle?

[00:09:08] Speaker 00:
So again, most cases are ineffective assistance of counsel cases.

[00:09:14] Speaker 00:
And this court also recognized in spate

[00:09:17] Speaker 00:
that these are not ineffective assistance of counsel claims.

[00:09:20] Speaker 00:
This is a different kind of Sixth Amendment claim.

[00:09:23] Speaker 00:
So it gets treated differently.

[00:09:25] Speaker 02:
That statement was made in a case that materially looks just like this case, Ardernum.

[00:09:31] Speaker 00:
It does look like this case.

[00:09:32] Speaker 02:
And that statement was made in that case.

[00:09:34] Speaker 02:
It's not made in Strickland.

[00:09:36] Speaker 02:
It's not made in any other case.

[00:09:37] Speaker 02:
It's talking about what would generally happen in this case.

[00:09:41] Speaker 02:
The court didn't feel the need to do it in this case.

[00:09:45] Speaker 00:
Right.

[00:09:47] Speaker 00:
And I think that we have better litigated the issue in this case, and that because the court didn't reach the question in Arduino Ramirez, it remains open, which is why we got a certificate of appealability, I believe, in this case here.

[00:10:01] Speaker 00:
And so I lost my train of thought there.

[00:10:08] Speaker 00:
Again, I want to emphasize, and I think the discussion in Gonzalez-Lopez is quite clear about the difference between ineffective assistance of counsel claims under the Sixth Amendment and other claims like counsel of choice or state interference with counsel.

[00:10:26] Speaker 00:
In fact, in Strickland itself said, some kinds of state interference with counsel are presumed to result in prejudice.

[00:10:34] Speaker 00:
And citing, among other things, Geters, which is the case where

[00:10:37] Speaker 00:
Council wasn't allowed to consult with the client, but that was state interference with counsel.

[00:10:42] Speaker 00:
And the defendant did not have to show prejudice in order to show the Sixth Amendment violation in Geters or the Council of Choice violation in Gonzalez-Lopez.

[00:10:51] Speaker 00:
So I accept the proposition that in ineffective assistance of counsel cases that are Strickland-Stopp cases that

[00:11:00] Speaker 00:
the harm is part of the Sixth Amendment claim and that the defendant must show harm.

[00:11:05] Speaker 00:
But it doesn't make sense here where, and it makes sense there because the defendant is the only one who can know what would I have done differently had my counsel acted competently, right?

[00:11:16] Speaker 00:
That's the defendant sharing what the defendant's own strategy would be there.

[00:11:21] Speaker 00:
But here, we have the opposite circumstance.

[00:11:24] Speaker 00:
We have the question is,

[00:11:27] Speaker 00:
How did the government use the information it was privy to?

[00:11:31] Speaker 00:
And that is the reason we have to put the burden on the government.

[00:11:37] Speaker 00:
If I may, I'd like to reserve some time for rebuttal unless the court would want to ask more questions at this point.

[00:11:43] Speaker 00:
Please.

[00:11:44] Speaker 00:
Thank you.

[00:12:03] Speaker 03:
Good morning, Your Honors.

[00:12:04] Speaker 03:
Brian Clark for the United States.

[00:12:06] Speaker 03:
May it please the court.

[00:12:08] Speaker 03:
When a defendant claims a violation of his Sixth Amendment right to the assistance of counsel, Judge Holmes, you're exactly right.

[00:12:14] Speaker 03:
The default rule is that the defendant is required to prove the prejudice element of his Sixth Amendment claim.

[00:12:20] Speaker 02:
And let me go one step further.

[00:12:22] Speaker 02:
And I want to be clear, and maybe I misunderstood reading some of these cases.

[00:12:28] Speaker 02:
I understood Ordurno to part of the through line there to be part and parcel of the Sixth Amendment violation is the existence of prejudice, irrespective of who has the burden to show it.

[00:12:42] Speaker 02:
Is that not your understanding?

[00:12:43] Speaker 03:
That's absolutely correct.

[00:12:45] Speaker 03:
And that's why I think Mr. Valdez's arguments regarding Chapman are entirely beside the point.

[00:12:50] Speaker 03:
And this gets partly to your question, Judge Matheson, because Chapman, as you all well know, is a doctrine of direct appellate review.

[00:12:59] Speaker 03:
And that harmless error review kicks in only after the defendant has shown that there is an established constitutional violation.

[00:13:07] Speaker 03:
But here, we're talking about a question of whether a constitutional violation has taken place in the first place.

[00:13:14] Speaker 03:
In this court, the question before it is, which party should bear the burden with respect to prejudice in determining whether there was a Sixth Amendment violation at all?

[00:13:27] Speaker 03:
So the discussion of Chapman as well as Brecht, I think, is a little bit beside the point.

[00:13:34] Speaker 03:
Our discussion of Brecht in our response brief was just responding to Mr. Valdez's reliance on Chapman, because at the very least, at the end of the day, if this court were to look beyond the Sixth Amendment context and start looking to other doctrines to determine how to allocate the burden with respect to prejudice in terms of the element of the Sixth Amendment claim,

[00:13:56] Speaker 03:
we think Brecht is where this court should turn because this is obviously on collateral work.

[00:14:02] Speaker 01:
Well, counsel, in a Strickland ineffective assistance of counsel case, let's say the defendant shows deficient performance and shows prejudice.

[00:14:16] Speaker 01:
Is there a need for a harmless error analysis at that point in any event?

[00:14:23] Speaker 01:
Isn't showing prejudice the end of

[00:14:25] Speaker 01:
the road and Brecht doesn't, or Chapman, Brecht, whatever, just don't come into play.

[00:14:32] Speaker 03:
I think that's right.

[00:14:33] Speaker 03:
And that's why I think sort of to really just to summarize and to focus sort of be able to put our fingers on what we're talking about here.

[00:14:39] Speaker 03:
We're talking about

[00:14:40] Speaker 03:
the prejudice element of the Sixth Amendment claim before you get into Chapman, before you get into Brecht.

[00:14:46] Speaker 03:
And I think because there is a prejudice element of the Sixth Amendment claim, regardless of who bears the burden, it really kind of makes Chapman, Brecht, and these other, you know, sort of doctrines or cases beside the point.

[00:14:59] Speaker 03:
And I think that was the point that was made in Gonzalez Lopez, that when there is a prejudice element of the underlying constitutional claim, it kind of makes those other harmless air doctrines sort of beside the point.

[00:15:15] Speaker 01:
Back to the prejudice issue then, and he has the burden, which is an issue we did leave open in Ordenio.

[00:15:27] Speaker 01:
Why wouldn't the government have better access to evidence on the issue of prejudice than the defendant?

[00:15:35] Speaker 03:
Well, here the answer is that actually Mr. Valdez has the main piece of evidence that is central to his claim and that is the two soundless videos that form the very basis of his claim.

[00:15:48] Speaker 03:
Here the prosecutor has sworn an affidavit saying that he didn't know the videos existed at the time of sentencing and he never viewed them.

[00:15:55] Speaker 03:
In the 2255 litigation, the litigation team that's been defending this claim has never been given access to those recordings.

[00:16:04] Speaker 03:
So really, at least for purposes of this case, Mr. Valdez is the only one of the two parties that has access to the evidence that is essential to proving his claim.

[00:16:15] Speaker 03:
And in addition to that, I would point this court to an analogous context, which is the Brady context.

[00:16:24] Speaker 03:
There, the defendant is required to prove materiality, even though it's the prosecutor who is alleged to have suppressed material exculpatory evidence.

[00:16:33] Speaker 03:
And there's no problem with putting the burden on the defendant in that context.

[00:16:38] Speaker 02:
That strikes me as being a different kind of analogy.

[00:16:41] Speaker 02:
In the Brady context, what we're talking about is whether

[00:16:44] Speaker 02:
this evidence would have been useful at trial and how it affects the fairness of trial.

[00:16:49] Speaker 02:
It seems to me this is a different question because it is not just the question of what did they do per se with that specific piece of evidence.

[00:16:58] Speaker 02:
In other words, did they try to introduce something related to it?

[00:17:01] Speaker 02:
Did they try to produce a witness?

[00:17:04] Speaker 02:
What you've got going on here that's different

[00:17:06] Speaker 02:
is strategy.

[00:17:08] Speaker 02:
What did the prosecutor do?

[00:17:10] Speaker 02:
What choices did the prosecutor make because he or she saw the tape or heard in another context the audio recording?

[00:17:19] Speaker 02:
What did they do in terms of mapping out their sentencing strategy and

[00:17:24] Speaker 02:
Even though Ordono sort of alludes to this, but doesn't talk about it specifically, prosecutors talk to probation officers all the time about what should be in the pre-sentence report or not.

[00:17:37] Speaker 02:
And maybe they make certain suggestions based upon what they know and what they should not know.

[00:17:43] Speaker 02:
And so the point I'm making is that dimension, it seems to me much more so than necessarily who's got the evidence right now.

[00:17:51] Speaker 02:
is a question as it relates to who has more knowledge because the defendant is never going to know.

[00:17:59] Speaker 02:
Absent some affidavit from the government or some showing from the government, the defendant is going to never know what choices the prosecutor made or did not make because of what they illegally knew.

[00:18:13] Speaker 03:
Sure.

[00:18:14] Speaker 03:
So one more point just specific to this case.

[00:18:17] Speaker 03:
What you just described is not this case at all.

[00:18:20] Speaker 03:
And in some ways, it really points up the reason why this court should not adopt

[00:18:24] Speaker 03:
Any sort of categorical rule, because in this case, I just reiterate the prosecutor never viewed the videos.

[00:18:30] Speaker 03:
The government doesn't know what is on the videos, except for what Mr. Valdez himself has said.

[00:18:35] Speaker 03:
And so in this case, it really doesn't make sense to place the burden on the government when even Mr. Valdez himself having all that information hasn't even alleged prejudice.

[00:18:44] Speaker 03:
And the district court, which reviewed the entire record, found that there was no threat at all to the fairness or reliability of Mr. Valdez's sentencing proceeding.

[00:18:55] Speaker 02:
No, I get that.

[00:18:57] Speaker 02:
And I get, as it relates to this case, the potential for these dangers are not salient.

[00:19:02] Speaker 02:
But it would seem to me that if one's looking, even in this case, the burden could be placed on the government.

[00:19:09] Speaker 02:
The government would just have an easy burden.

[00:19:10] Speaker 02:
I mean, it's just going to say, I don't know anything.

[00:19:12] Speaker 02:
But in another case,

[00:19:14] Speaker 02:
And that's what I'm trying to allude to, whether it really does matter and how significant it is, because it seems to me that the magnitude of the problem in terms of the

[00:19:30] Speaker 02:
Party that has the most information the magnitude of that thing weighs against the question of this default Which I alluded to earlier and so I I'm struggling to understand why that doesn't matter even though it's not relevant here.

[00:19:43] Speaker 02:
Okay, the point is Why shouldn't we adopt that right?

[00:19:47] Speaker 03:
So they get backing up and sort of taking the question more broadly and

[00:19:51] Speaker 03:
I think that in general, the defendant typically has the burden of showing all of the elements of his Sixth Amendment claim.

[00:20:04] Speaker 03:
And the defendant has an idea of how he thinks maybe the prosecutor used a particular piece of information or what the prosecutor did or didn't do.

[00:20:14] Speaker 03:
And the defendant is not powerless, because if this issue were to arise in a case,

[00:20:20] Speaker 03:
The defendant in his criminal case could ask for an evidentiary hearing, could issue subpoenas for evidence from the government, whether that be affidavits or witness testimony or documentary evidence.

[00:20:33] Speaker 03:
And so the defendant has tools at his disposal to marshal the evidence that he might need

[00:20:39] Speaker 03:
to carry the burden of proving the prejudice element of his Sixth Amendment claim.

[00:20:44] Speaker 03:
And I would just note that in the eight circuits that do place the burden on the defendant to prove the prejudice element of his Sixth Amendment claim, there doesn't seem to be any real problem with the defendant being able to do that.

[00:20:59] Speaker 03:
And by contrast, shifting the burden to the government

[00:21:02] Speaker 03:
to prove that the defendant was not prejudiced puts the government in a very difficult position of having to prove a negative, and sometimes without the evidence that is most critical to that inquiry.

[00:21:14] Speaker 03:
And so I think, again, this case undermines the assumption that typically the government will have the best access.

[00:21:21] Speaker 03:
And I also think that, in general, a defendant is not powerless to get the evidence that he needs to carry his burden.

[00:21:27] Speaker 02:
Well, this case undermines the assumption, too, that it would be difficult for the government to do it.

[00:21:31] Speaker 02:
because the government has no problem in this case carrying the burden of showing what it knows and showing that there's no prejudice.

[00:21:38] Speaker 03:
Right.

[00:21:38] Speaker 03:
And that's a fair point.

[00:21:39] Speaker 03:
The government was able to prove that the defendant was not prejudiced in this case.

[00:21:44] Speaker 03:
And I think that really points up an important

[00:21:47] Speaker 03:
point, which is that, you know, in this case, the question of whether to adopt a rebuttable presumption of prejudice really is academic, because in this case, under Orduno Ramirez, which in this case is a carbon copy of Orduno Ramirez, there's no basis for distinguishing this case from that one, the government has proven the defendant wasn't prejudiced.

[00:22:09] Speaker 02:
And you were anticipating my exact next question.

[00:22:13] Speaker 02:
So why should we do that here?

[00:22:16] Speaker 02:
I mean, why should we even reach the allocation of the burden of proof issue here when whether we do or whether we don't, at least it appears, and perhaps I'm missing something, but it appears that there could be no showing as the district court found of prejudice.

[00:22:35] Speaker 03:
Right.

[00:22:36] Speaker 03:
I don't think this court needs to.

[00:22:37] Speaker 03:
And I think what is really important, and I mentioned this earlier, but the district court made factual findings after having reviewed the entire record, including the videos, which aren't in the record on appeal for this court.

[00:22:47] Speaker 01:
Could I just, to clarify your position, a few minutes ago, I think I heard you say something about not needing to formulate a categorical rule.

[00:23:00] Speaker 01:
And now we're even discussing whether

[00:23:07] Speaker 01:
to formulate any rule.

[00:23:12] Speaker 01:
So I'm not sure where that leaves us.

[00:23:15] Speaker 01:
If we were to go ahead without saying one way or the other in cases going forward, who has the burden?

[00:23:26] Speaker 01:
Does that mean this is going to be a case by case determination for the time being?

[00:23:32] Speaker 03:
So I think what this court could do is leave the door open, say that the district court in this case found that no realistic possibility of prejudice was even imaginable on the facts of this case, that the district court found that there was no threat at all to the fairness or reliability of Mr. Valdez's sentencing proceeding, and leave for another day the question of whether a rebuttable presumption of prejudice

[00:23:57] Speaker 03:
should apply in the context where a defendant alleges a post-plea, pre-sentencing government intrusion.

[00:24:03] Speaker 01:
Why do you say rebuttable presumption of prejudice?

[00:24:06] Speaker 01:
Isn't this just about who has the burden to show it, period?

[00:24:11] Speaker 03:
No, I don't think so.

[00:24:12] Speaker 03:
And the reason why I say rebuttable is because in the cases that even Mr. Valdez relies on, the burden initially is on the defendant.

[00:24:21] Speaker 03:
The defendant has to make a prima facie showing of prejudice before triggering

[00:24:27] Speaker 03:
the presumption, which then can be rebutted by the government.

[00:24:31] Speaker 02:
But in that case law, generally, isn't it just the question the defendant has to show that, in fact, there was an intrusion?

[00:24:37] Speaker 03:
Not just that there was an intrusion.

[00:24:40] Speaker 03:
Well, OK.

[00:24:40] Speaker 02:
Go ahead.

[00:24:42] Speaker 03:
I'm sorry to interrupt, Your Honor, but that the intrusion, and this is important, that the intrusion resulted in the government obtaining the defendant's confidential defense strategy.

[00:24:50] Speaker 03:
And here, there's no claim that the government obtained Mr. Valdez's confidential defense strategy.

[00:24:55] Speaker 02:
Defense strategy or confidences.

[00:24:58] Speaker 02:
I mean, there's a question here whether the government got anything.

[00:25:03] Speaker 02:
But I mean, who's going to determine whether it's defense strategy or not?

[00:25:06] Speaker 02:
I mean, if the government... Let's take another case.

[00:25:09] Speaker 02:
If the government had listened to audio recordings involving the defendant and his lawyer,

[00:25:14] Speaker 02:
In carrying his burden, would the defendant be required to show that those conversations actually involve defense strategy?

[00:25:22] Speaker 03:
Yes, under Weatherford v. Bursey, the core aspect of the question is whether there was a communication of defense strategy to the prosecution.

[00:25:31] Speaker 03:
So discussions about whether or other harmless topics

[00:25:34] Speaker 03:
simply don't implicate Sixth Amendment concerns.

[00:25:37] Speaker 02:
Well, I would hit a pause button right here and say that it seems to me that the question first, the antecedent question, is who has the burden.

[00:25:45] Speaker 02:
What you're talking about are the nuances of what that burden looks like.

[00:25:48] Speaker 02:
And to Judge Matheson's point, it seems to me initially that would be the question.

[00:25:53] Speaker 02:
If we're going to do anything at all, we've got to decide who's got the burden.

[00:25:57] Speaker 02:
Then we decide whether we're going to adopt these cases that you're alluding to as to what the nature of that burden would be.

[00:26:02] Speaker 02:
Those are two different questions.

[00:26:05] Speaker 03:
Right.

[00:26:05] Speaker 03:
And I think I would begin where I began, which is to say that the default rule is that the defendant bears the burden of proving the prejudice element of his Sixth Amendment claim.

[00:26:16] Speaker 03:
Then the question for the court is, OK, in particular contexts, do you want to create an exception to that rule for any number of reasons?

[00:26:27] Speaker 03:
And then look at the case law that shows courts that have adopted an exception to that default rule.

[00:26:33] Speaker 03:
The courts that have done that have required the defendant to make a prima facie showing of prejudice before the government is required

[00:26:41] Speaker 03:
to rebut that presumption.

[00:26:43] Speaker 03:
So maybe that threshold showing is pretty low.

[00:26:45] Speaker 03:
Maybe it just has to show that the government obtained some information that was usable.

[00:26:52] Speaker 03:
But there has to be some prima facie showing of prejudice before the government has to come back and rebut the presumption of prejudice.

[00:27:05] Speaker 03:
And I seem that my time has expired.

[00:27:07] Speaker 03:
Unless there are any further questions, I would just ask the court to affirm.

[00:27:10] Speaker 02:
Thank you, counsel.

[00:27:10] Speaker 03:
Thank you.

[00:27:21] Speaker 00:
I think I have four quick points.

[00:27:23] Speaker 00:
The first one is the government has not brought to this court a single case from the Supreme Court or any other circuit where all factors we've discussed here are present, privy to

[00:27:37] Speaker 00:
attorney-client communications intentionally and without a legitimate justification where a court put the burden on the defendant to show prejudice.

[00:27:44] Speaker 00:
This court would be doing that for the first time.

[00:27:46] Speaker 00:
As far as I can tell, there is no precedent for doing that.

[00:27:49] Speaker 00:
In fact, we might even be creating a circuit split because we've got these other circuits that are putting the burden on the government for these kinds of intrusions.

[00:27:57] Speaker 00:
Number two, I wanted to say

[00:28:00] Speaker 00:
I agree with everything your honor said about the difference between this kind of case and the Brady case and I wanted to add to that, that in Brady it makes sense to put the burden on the defendant to show materiality because the defendant has to show what they would have done with the evidence that the government withheld, what they would have done with it.

[00:28:20] Speaker 00:
Whereas here we're asking what the government did with the

[00:28:23] Speaker 00:
information it got from the communications.

[00:28:26] Speaker 00:
So again, it makes sense and is consistent with Brady to put the burden on the government here.

[00:28:33] Speaker 00:
So is the burden

[00:28:37] Speaker 00:
prejudice burden part of the claim, or does it come after the claim?

[00:28:41] Speaker 00:
Again, I think I said earlier, that might be semantic, a purely semantic problem here.

[00:28:46] Speaker 00:
Maybe it's not, but... No, it isn't semantic.

[00:28:49] Speaker 00:
Okay.

[00:28:50] Speaker 00:
Either way, the Ninth Circuit thought it was semantic in the Danielson case, but either way, this court can put the burden on the government, however it views it.

[00:29:00] Speaker 00:
At the end of the day, the burden should be on the government.

[00:29:03] Speaker 00:
And yes, I agree with, I don't remember if it was Judge Matheson or Judge Holmes who said,

[00:29:08] Speaker 00:
once there's a prejudice finding as part of the claim, then we don't, it's true, we don't need to go on to any kind of rect analysis because prejudice is already on the table there.

[00:29:17] Speaker 00:
Okay, lastly, I just wanted to mention the difference between this case and Orduno Ramirez in terms of how this court resolves this case is that we took our lesson from Orduno Ramirez and tried to show this court all of the remaining outstanding factual questions that really ought to be resolved by the district court.

[00:29:35] Speaker 01:
Could I just, in that regard, the district court, and I'm quoting from the district court, said that Mr. Valdez is not demonstrated and cannot show nor can the court imagine any realistic probability of prejudice.

[00:29:51] Speaker 01:
What do we do with that?

[00:29:52] Speaker 01:
I mean, do we review it for clear error?

[00:29:55] Speaker 01:
Do we review it de novo?

[00:29:56] Speaker 01:
Or is that just...

[00:29:58] Speaker 01:
What do we do with that?

[00:30:00] Speaker 00:
The easy route is just to say, the court applied the wrong standard.

[00:30:07] Speaker 00:
Let's send it back for the court to apply the right standard, that it wasn't on Mr. Valdez to show these things.

[00:30:13] Speaker 00:
I'd like to point out, too, though, that statement by the district court feels a little inconsistent with the district court's other rulings, which were that it was going to adopt an adverse inference that the prosecution team was indeed privy to the contents of the communications.

[00:30:31] Speaker 00:
And Weatherford itself seems to equate becoming privy to communications with a realistic possibility of prejudice.

[00:30:40] Speaker 00:
So the district court's statement that it couldn't imagine a realistic possibility of prejudice doesn't seem to sit well with Weatherford.

[00:30:48] Speaker 02:
But at any rate... I think the point that Judge Matheson directly asked is do you think that's a factual finding or not?

[00:30:54] Speaker 02:
In light of the fact that the district court actually looked at the tape and was aware of the affidavit, the court made an infatual finding.

[00:31:02] Speaker 00:
I will say, no, the district court made clear it was not relying on the tape in finding that Mr. Valdez did not bear his burden because, remember, the district court just says, just makes a finding that the tape had communicative value and held back, decided not to

[00:31:23] Speaker 00:
Answer the question of whether it had what the court was calling adversarial value So the district court says communicative value is what we had to show up front to get through the gate We showed that but the court said any other findings are not pertinent because I'm going to find you didn't show prejudice anyway So the court does not rely on the contents of the video doesn't in fact says other findings about the video are not pertinent and

[00:31:47] Speaker 00:
And so I don't think that's a factual finding.

[00:31:49] Speaker 02:
I think that is just part of... And then what are the elements that caused the court to make that decision?

[00:31:55] Speaker 02:
The affidavit that was before the court?

[00:31:58] Speaker 02:
What else?

[00:32:00] Speaker 00:
The court looked at just on the surface of sentencing.

[00:32:04] Speaker 00:
So really missed those kinds of possibilities that I think this court recognized in Ordino Ramirez and spoke about this morning that there are strategic things happening behind the scenes that aren't apparent on the record.

[00:32:16] Speaker 00:
of what a prosecutor can do with attorney-client communications.

[00:32:21] Speaker 00:
And I understand that it may be, maybe it will be an easy show for the government on remand, but I do want to point out as well that

[00:32:31] Speaker 00:
one prosecutor of two prosecutors on the case signed an affidavit.

[00:32:35] Speaker 00:
The other prosecutor on the case was the one who pulled all these videos in the first place, was the one who claimed to have information from a video in a different case, was the one who worked with this same prosecutor who did sign the affidavit in a case where she, Tomasic, in fact hired a translator to learn more about attorney-client communications

[00:32:58] Speaker 00:
And yet, there's no affidavit from that prosecutor.

[00:33:02] Speaker 02:
Yes, she withdrew before sentencing, but she had... Well, if she withdrew before sentencing, why is it relevant?

[00:33:08] Speaker 02:
I mean, the whole point is what the impact is at sentencing.

[00:33:12] Speaker 02:
And if the prosecutor would handle the sentencing, and what we're talking about is prejudice at sentencing, says that he doesn't know anything, he hasn't seen the tape, and he hasn't used the tape.

[00:33:20] Speaker 02:
Why is it relevant?

[00:33:22] Speaker 00:
As this court pointed out just a little bit ago, prosecutors are often giving information to the pre-sentence officer before the pre-sentence report is written.

[00:33:29] Speaker 02:
But that prosecutor had the information.

[00:33:32] Speaker 02:
And that prosecutor says he didn't have the information.

[00:33:35] Speaker 00:
That prosecutor said he didn't have the information.

[00:33:37] Speaker 00:
But the prosecutor who did pull the tapes, who didn't sign an affidavit,

[00:33:43] Speaker 00:
I might also mention the district court found the prosecutor who signed the affidavit not credible when he said he didn't know what his co-counsel was doing in a different case.

[00:33:53] Speaker 00:
So there are reasons to ask the district court to hold an evidentiary hearing on the affidavit and on what the other prosecutor did before she withdrew from the case.

[00:34:07] Speaker 02:
And I blame myself.

[00:34:08] Speaker 02:
You've gone way over.

[00:34:10] Speaker 02:
But let me, I need to ask you before you sit down the question, keep it short.

[00:34:16] Speaker 02:
Do we really need to decide this issue?

[00:34:18] Speaker 02:
I mean, if in fact it is the case that absolutely whoever has the burden in this case, you lose.

[00:34:26] Speaker 02:
I mean, in other words, let's just posit that for a moment.

[00:34:30] Speaker 02:
I'm not saying you have to agree with it, but if wherever the allocation of the burden is, we determine that there has been no showing of prejudice as in Ordono, do we have to reach the issue at all?

[00:34:44] Speaker 00:
At that point, maybe the COA was improvidently granted.

[00:34:49] Speaker 02:
Well, I mean, no, the COAs are granted based upon a review, a quick review.

[00:34:54] Speaker 00:
Yes, true, true.

[00:34:58] Speaker 00:
This court sends cases back when a district court gets the standard wrong in a lot of other contexts, suppression claims, getting the guidelines wrong.

[00:35:09] Speaker 00:
And that is just exactly where we are in this case.

[00:35:12] Speaker 00:
There are outstanding factual questions that the district court should be the one to resolve.

[00:35:17] Speaker 00:
So that is why this should be a two-step process.

[00:35:20] Speaker 00:
Here's the rule.

[00:35:21] Speaker 00:
Here it goes back to the district court.

[00:35:24] Speaker 02:
All right.

[00:35:24] Speaker 02:
Thank you.

[00:35:25] Speaker 02:
Thank you.

[00:35:27] Speaker 02:
Thank you for refining our humans cases submitted.