[00:00:00] Speaker 01:
Based on a clunky three to Sheridan's end, the United States of America versus Dean Von Roe, also known as Dean Vaughn, Mr. Coburn, attorney balance to booth for the employee.

[00:00:13] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
Good morning, your honor.

[00:00:17] Speaker 01:
May it please the court, Barry Coburn for the appellant, Dean Von Roe.

[00:00:23] Speaker 01:
What I would propose to do is to direct the court's attention to or ask the court

[00:00:29] Speaker 01:
to focus, I should say, on one particular aspect of our argument, of what we noted in our opening brief, which has to do with the several witnesses that Mr. Rowe identified for his trial counsel.

[00:00:45] Speaker 01:
And with respect to those witnesses, what happened or didn't happen in terms of Mr. Rowe's representations is essentially uncontested.

[00:00:55] Speaker 01:
There appears to be no dispute that his trial counsel talked to, I think, three of them, but then there were a series of them that he didn't talk to and never made contact with.

[00:01:11] Speaker 01:
There's no evidence that he sought to.

[00:01:13] Speaker 01:
The problem with that from our standpoint is, what happened basically in this case was what we as a criminal defense counsel will refer to colloquially as a slow plea.

[00:01:32] Speaker 01:
Part of the reason for that was because, at least as far as I can tell from reviewing the record,

[00:01:37] Speaker 01:
the jury really never had any reason to doubt the proposition that with respect to the contact with Mr. Rose computer, which was really the centerpiece of the prosecution of him, that he did that.

[00:01:51] Speaker 01:
I mean, there was sort of a vague

[00:01:53] Speaker 01:
suggestion out there that the door was open and other people could have used it.

[00:01:58] Speaker 01:
That's really very unpersuasive evidence from my standpoint, vis-a-vis what could have been developed, which was evidence that other employees, co-employees actually utilized his computer on a regular basis.

[00:02:14] Speaker 03:
This is a factual matter, counsel.

[00:02:17] Speaker 03:
Wasn't there evidence from the government's own evidence that was used by Rose Council below to show that two devices were logged in at the same time, which would suggest that someone else had the ability or access to log in using Mr. Rose credentials?

[00:02:46] Speaker 01:
It's probably consistent with that proposition, Your Honor.

[00:02:51] Speaker 01:
You know, the fact that two computers are logged in at the same time for the same user.

[00:02:56] Speaker 01:
and can connote the notion that the user is simply using one computer and then another computer sequentially.

[00:03:02] Speaker 01:
But the more fundamental point from my standpoint is that evidence, even if it suggests exactly what Your Honor just indicated, if it suggests that others might have used his computer on, say, one occasion or something like that,

[00:03:18] Speaker 01:
That's not, I would suggest to the court, functionally equivalent to the proposition that there are a series of other individuals who used his computer, used his login on a regularized basis.

[00:03:32] Speaker 01:
And there is sworn testimony

[00:03:34] Speaker 01:
in the 2255 hearing to that effect from Mr. Rowe.

[00:03:39] Speaker 01:
There's no evidence to the contrary.

[00:03:41] Speaker 01:
And so there's every reason, I would suggest, to believe the proposition that had his trial counsel located, interviewed, and presented the testimony from these individuals, the jury then would have had something, I would suggest, far more substantive, far more substantive.

[00:04:01] Speaker 03:
Let me ask this question.

[00:04:03] Speaker 03:
Suppose the case is a shooting that happens on January 1st at noon, and the defendant tells his lawyer, well, on January 1st at noon, I was at a picnic at some other place.

[00:04:26] Speaker 03:
And there were 10 people who were with me at that picnic and who would be able to testify that I was there.

[00:04:39] Speaker 03:
And the defense lawyer speaks to three of them and they say, I don't know what you're talking about.

[00:04:45] Speaker 03:
There was no picnic on that day.

[00:04:48] Speaker 03:
Does not speak to the other seven.

[00:04:53] Speaker 03:
Do we just presume ineffectiveness because we presume that the other seven or at least one of the other seven would have corroborated that the defendant was at the picnic with them?

[00:05:08] Speaker 03:
Or would we require some sort of showing that at least one of those seven witnesses that reported witnesses that wasn't spoken to would actually say that?

[00:05:23] Speaker 01:
My suggestion to your honor is that the metaphor is problematic for the following reasons.

[00:05:36] Speaker 01:
If you have ten people at a picnic and you interview three of them and all three of them say

[00:05:41] Speaker 01:
that there was no picnic on that date and time.

[00:05:44] Speaker 01:
Then, I mean, that's persuasive evidence right there to that proposition that there was no picnic.

[00:05:52] Speaker 01:
And so I'm not sure that I can make a credible argument that it's necessary to talk to all 10 of them to see whether anybody is going to contradict what the three said, that there was no picnic.

[00:06:03] Speaker 01:
But here, you've got a situation in which these people are engaged in activity independent of one another.

[00:06:09] Speaker 01:
So in other words, if trial counsel had interviewed one witness and that witness said, no, I never used Mr. Rowe's login, that is not persuasive of the proposition that witness number two would say the same thing.

[00:06:24] Speaker 01:
So that, I think, is a fundamental difference.

[00:06:27] Speaker 03:
And so, moreover... I take your point, but I guess, and that is, I think that's a fair distinction, but I guess my bigger issue is

[00:06:39] Speaker 03:
you have to establish prejudice.

[00:06:43] Speaker 03:
So even if I were to agree with you that it was deficient performance to not have interviewed every single one of these witnesses that Mr. Rowe identified, how do I know that there was prejudice?

[00:07:04] Speaker 01:
I focused on that very question as well, Your Honor, and I focused on several cases that are cited in our opening brief on what constitutes a showing of prejudice in the 2255 context.

[00:07:16] Speaker 01:
And here I'm referring to the Fatoum Abahirtou, the US case, Blakeney, and Strickland actually addresses this too.

[00:07:27] Speaker 01:
that it would be necessary to demonstrate, you know, so let's say to a preponderance that the result would have been different, but that's not actually the standard.

[00:07:36] Speaker 01:
What you have to show is whether there is, and here I think I'm quoting from Strickland, whether there's a reasonable probability that absentee errors, the fact finder

[00:07:46] Speaker 01:
would have had a reasonable doubt, respect, and guilt.

[00:07:48] Speaker 04:
And here... So what do you think is involved in showing that?

[00:07:51] Speaker 04:
Because what would have been very helpful is for us to have some idea of what these other witnesses would have said.

[00:07:58] Speaker 04:
But there's no attempt to go interview them now.

[00:08:01] Speaker 04:
There's not really a record from which we could do anything but speculate.

[00:08:06] Speaker 01:
I thought about that very issue, Your Honor, and I think as I stand here, I have to concede that in the context of the evidentiary hearing below before Judge Chuckin, it would have been preferable to have an

[00:08:21] Speaker 01:
go out and interview these witnesses and present testimony from the witnesses themselves and or the investigator, if that's not hearsay.

[00:08:29] Speaker 01:
But I mean, to establish a record to a greater degree of specificity, I've got to concede that would have been preferable.

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But there actually is a record here, even if not a perfect record.

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And I think Judge Chuckin may have

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We disagree with the conclusion in Judge Chuckin's memorandum of opinion that there was no showing about what these witnesses would have said because what you do have is the appellant's own sworn testimony in the hearing in the 2255 evidence

[00:09:03] Speaker 01:
your hearing below.

[00:09:04] Speaker 04:
One more question then about deficiency, which was sort of the next step, I think, in my mind from what Judge Wilkins was asking, because Brennan actually says at the hearing that I understood the setup of this office.

[00:09:18] Speaker 04:
There was a computer in the front and a computer in his office.

[00:09:22] Speaker 04:
And even if

[00:09:23] Speaker 04:
Steele and Saunders had said, yeah, every day people are going into his private office and using his computer.

[00:09:29] Speaker 04:
I wouldn't have called them because that would raise all sorts of other questions that could have been harmful to our defense.

[00:09:35] Speaker 04:
And this is his explanation.

[00:09:37] Speaker 04:
Then you have, it sounds like we're trying to prove who it was rather than creating reasonable doubt.

[00:09:43] Speaker 04:
It's on pages 346 to 49 of the JA.

[00:09:46] Speaker 04:
Anyway, why isn't that a reasonable judgment, even if

[00:09:50] Speaker 04:
I could have had testimony, it would have opened them up to damage and cross-examination.

[00:09:55] Speaker 04:
What's wrong with that combination?

[00:09:57] Speaker 01:
And of course, that's exactly the rub, if you will.

[00:10:01] Speaker 01:
That's the issue you run into in virtually every 2255 case, where the trial counsel whose performance is- Sorry, but this is not a 2255.

[00:10:11] Speaker 05:
We're still on direct appeal here.

[00:10:13] Speaker 05:
We remanded from the direct appeal, just so you know.

[00:10:16] Speaker 05:
I'm sorry.

[00:10:16] Speaker 05:
Go ahead.

[00:10:17] Speaker 01:
I may have misunderstood the question then, because I thought what was being referred to here was Brennan's testimony about the notion that I wasn't going to call them because they would have been subject to adverse cross-examination, which is, of course, always a possibility.

[00:10:35] Speaker 01:
You can't eradicate that as a trial lawyer.

[00:10:37] Speaker 01:
But here, in terms of the reasonableness of the tactical judgment at issue,

[00:10:44] Speaker 01:
How would eliciting testimony from a witness to that effect, as Your Honor just described it, that they were routinely utilizing his computer?

[00:10:55] Speaker 01:
And of course, I could speculate that there might have been other adverse things that could have been elicited from these people on cross-examination.

[00:11:03] Speaker 01:
But that would have been, it would seem to me, an absolutely critical bit of exculpatory testimony.

[00:11:11] Speaker 01:
That would have actually given

[00:11:13] Speaker 01:
trial counsel something to argue, something substantive to argue.

[00:11:17] Speaker 01:
Ladies and gentlemen, you can't tell.

[00:11:19] Speaker 01:
You don't know that this was him who did this.

[00:11:22] Speaker 01:
Now, of course, I concede there's other evidence against Mr. Roe at trial.

[00:11:28] Speaker 01:
There was some surveillance testimony and so on.

[00:11:32] Speaker 01:
But that would have been at least a substantial kernel of reasonable doubt, which I think meets the prejudice standard.

[00:11:42] Speaker 03:
Can you identify any case where a court has said that we will rely on the defendant's testimony about what purported witnesses would have said to establish prejudice in the absence of any sort of even hearsay from an investigator from those witnesses?

[00:12:10] Speaker 01:
I don't think I have that case.

[00:12:13] Speaker 01:
I have a recollection of having read authority to that effect, but I don't have it at my fingertips.

[00:12:20] Speaker 01:
And like I said, I acknowledge it would have been better to have some additional investigation done following remand prior to the 2255.

[00:12:31] Speaker 01:
evidentiary hearing, that would have been better and would have given the court more to work with.

[00:12:36] Speaker 01:
But I guess my response to Your Honor would be, I don't think there's any per se reason why, you know, because, I mean, the defendant isn't just speculating.

[00:12:46] Speaker 01:
I mean, he is testifying based on his own observations and interactions with these individuals.

[00:12:52] Speaker 01:
And so that would seem to be competent testimony.

[00:12:55] Speaker 01:
And of course, I mean, I recognize he has a substantial interest

[00:12:59] Speaker 01:
But nonetheless, I don't think that disables him from providing that evidence.

[00:13:04] Speaker 05:
You mentioned a couple of times how much preferable it would have been to have had some actual evidence gathered.

[00:13:13] Speaker 05:
You were not counseled for the remand hearing, which I remind you again was not a 2255.

[00:13:17] Speaker 05:
This is just our procedure.

[00:13:19] Speaker 05:
It's still all direct appeal.

[00:13:20] Speaker 05:
No 2255.

[00:13:21] Speaker 01:
Oh, I understand.

[00:13:22] Speaker 01:
I'm sorry.

[00:13:22] Speaker 01:
I misunderstood your Honor's point.

[00:13:24] Speaker 01:
I have it.

[00:13:24] Speaker 05:
Right.

[00:13:26] Speaker 05:
You weren't counsel there.

[00:13:28] Speaker 05:
But in fact, when you brought this appeal, you filed a motion for summary reversal on the basis of the incompetence of the attorney who handled

[00:13:38] Speaker 05:
that remand proceeding for failure to do the very thing that she said she was going to do, and that is interview witnesses and make the very record that everyone knows needs to be made on these types of showings.

[00:13:51] Speaker 05:
And the panel that heard that summary reversal decision said, we're not ready to summary reverse.

[00:13:58] Speaker 05:
We're referring this to the merits panel.

[00:14:02] Speaker 05:
And you must brief it to the merits panel.

[00:14:07] Speaker 05:
And if you were right that she was incompetent for failure to do the very thing that needs to be done in this type of proceedings, that could have been an important claim to be presented here.

[00:14:20] Speaker 05:
But it's nowhere in your briefs, and I'm really quite baffled given that your argument recognizes how harmful it is not to have the record made when the opportunity was given.

[00:14:34] Speaker 01:
I take your honor's point, and I'm thinking back a ways here in terms of what our rationale was for approaching it that way.

[00:14:41] Speaker 01:
And I'm not sure this is going to be a satisfactory explanation to your honor.

[00:14:46] Speaker 01:
But what we're authorized to pursue as appointed counsel here is

[00:14:54] Speaker 01:
You know, the direct appeal of Judge Chuckin's determination below that trial counsel was ineffective, not a direct appeal.

[00:15:05] Speaker 05:
You filed a motion for summary reversal and remand.

[00:15:10] Speaker 05:
So that clearly was within your wheelhouse.

[00:15:12] Speaker 05:
And if that's part of what's needed to be done, if you need to show that person was ineffective, so you have a record to show that the other person was ineffective, I see no colorable argument that that's not within your wheelhouse.

[00:15:23] Speaker 05:
And you thought it was because you filed the motion and two members of this panel thought it was worth sending to this very panel.

[00:15:30] Speaker 05:
for a decision on the merits.

[00:15:32] Speaker 05:
I guess I'm not understanding that explanation.

[00:15:34] Speaker 05:
If you thought you could file the motion then, you could certainly.

[00:15:37] Speaker 05:
The panel told you you could brief the issue.

[00:15:40] Speaker 05:
I don't know what more authorization you need.

[00:15:42] Speaker 01:
Understood.

[00:15:43] Speaker 01:
And that easily could have been a mistake on my part.

[00:15:46] Speaker 01:
But that, if I remember correctly, was our thinking, that we were not empowered to do it, at least with respect to pursuing this appeal.

[00:15:56] Speaker 01:
That's not to say that there might not be

[00:15:59] Speaker 01:
And of course, as I stand here right now, I don't know procedurally precisely what options Mr. Rowe would have in that regard.

[00:16:07] Speaker 01:
But I believe we concluded, and we may have been wrong, I believe we concluded that we couldn't pursue it in this context because it's not within the scope of what we were authorized to appeal.

[00:16:19] Speaker 05:
Was it competent for attorney at the remand proceeding not to investigate any witnesses, not to make a record?

[00:16:29] Speaker 01:
Well, as your honor correctly notes, there was a position taken earlier to the effect that it may not have been competent.

[00:16:44] Speaker 01:
I mean, that's just an excellent question.

[00:16:46] Speaker 01:
There, I think you might be within some sort of a reservoir of tactical judgment.

[00:16:53] Speaker 01:
And that would depend on the specific conversations about what Mr. Rowe knew about what these witnesses would have said.

[00:17:04] Speaker 01:
So I suppose you could envision a scenario

[00:17:07] Speaker 01:
in which a tactical judgment could be made, that I'm not gonna hire an investigator, I'm better off with Mr. Rose testimony.

[00:17:14] Speaker 05:
I guess I'm a little confused because the heart of your argument for why trial counsel was ineffective was sort of, was we gotta, you gotta talk to the people and you gotta ask the questions.

[00:17:26] Speaker 05:
You don't know what you don't know.

[00:17:27] Speaker 05:
No one's yet saying, you can't know whether someone was effective strategically or ineffective,

[00:17:36] Speaker 05:
for failing to put a witness on without having first figured out what that witness is going to say.

[00:17:41] Speaker 05:
You don't know what you don't know.

[00:17:43] Speaker 05:
And so given that that's your argument here as to trial counsel, I'm a little confused by your argument that somehow the attorney on remand could have

[00:17:55] Speaker 05:
just decided I'm not going to bother to interview or ask anybody.

[00:17:58] Speaker 05:
I'm not going to do an investigator.

[00:18:00] Speaker 05:
Having said I was going to interview these witnesses, I did not interview these witnesses.

[00:18:06] Speaker 05:
So how can you make an uninformed strategic judgment, I guess is my question.

[00:18:10] Speaker 01:
I don't think I have a good answer to that question, Your Honor, and I do take the court's point with respect to it.

[00:18:15] Speaker 01:
I don't think the two scenarios are necessarily precisely identical.

[00:18:20] Speaker 01:
From the perspective of Mr. Rowe's trial counsel, he's interacting with a client prior to a jury trial.

[00:18:28] Speaker 01:
The client says, these, I guess it's six or seven individuals have information which is

[00:18:34] Speaker 01:
I don't think I see a legitimate tactical argument as to why you would not hire an investigator to interview those people.

[00:18:55] Speaker 01:
the second lawyer who handled the hearing on remand.

[00:19:02] Speaker 01:
That might be different.

[00:19:04] Speaker 05:
I don't know why you're bothering to defend it.

[00:19:06] Speaker 05:
I don't understand why.

[00:19:08] Speaker 05:
The whole point of that hearing was to gather evidence.

[00:19:11] Speaker 05:
The whole purpose of it was to gather evidence and make a record.

[00:19:15] Speaker 05:
And that didn't happen.

[00:19:18] Speaker 01:
It certainly didn't happen in that regard.

[00:19:19] Speaker 01:
I agree with Your Honor's observation to that.

[00:19:23] Speaker 05:
Pellet counsel thought at some point here that it was so obvious that there should have been a summary reversal and remand for yet another ineffective assistance hearing.

[00:19:34] Speaker 01:
Understood.

[00:19:36] Speaker 01:
And as I said, Your Honor, that may have been a misjudgment on my part in terms of not including that in the merits brief, in our opening brief.

[00:19:46] Speaker 01:
My best recollection in terms of our thinking at the time was that we concluded that we might not be allowed to do it in this context.

[00:19:54] Speaker 01:
And it might require a separate proceeding in which an allegation is made below about ineffectiveness of the remand council.

[00:20:04] Speaker 01:
But I could have been wrong.

[00:20:05] Speaker 05:
No questions.

[00:20:08] Speaker 04:
I just have one more sort of type of question, which is about the, what do you understand this argument to be that the lawyer didn't review discovery with him?

[00:20:20] Speaker 04:
What evidence is he saying the lawyer didn't review with him?

[00:20:26] Speaker 04:
Because on one view, it sounds like a lot of the primary evidence in the case, he's claiming his lawyer didn't review with him.

[00:20:33] Speaker 04:
And that would look a lot like a big problem.

[00:20:37] Speaker 04:
It's all very vague.

[00:20:38] Speaker 01:
Well, it is vague.

[00:20:40] Speaker 01:
And there was extensive testimony below from his trial counsel about what discovery materials he showed Mr. Rowe and reviewed with him when Mr. Rowe was incarcerated and what materials he didn't.

[00:20:53] Speaker 04:
And it sounded from that... Do you think the trial court credited Brennan's version of that?

[00:20:59] Speaker 01:
Absolutely.

[00:21:01] Speaker 01:
I mean, I didn't see anything in the trial court's memorandum of opinion suggesting she didn't credit it.

[00:21:06] Speaker 01:
And I'm not sure in my own mind, as I sit here, I may just be having a failure of recollection, but I'm not sure how directly inconsistent Brennan's testimony about what he reviewed with Mr. Rowe was.

[00:21:19] Speaker 01:
vis-a-vis what Mr. Rowe said was reviewed.

[00:21:24] Speaker 01:
It may have been directly inconsistent.

[00:21:26] Speaker 01:
I sort of emerged with the impression that it might not have been.

[00:21:29] Speaker 01:
And if Brennan's testimony is credited, it sounded like he made a cut in his own mind in terms of what was substantively significant at trial and what likely wouldn't be.

[00:21:42] Speaker 05:
I'm curious as to the basis for inferring a finding of credibility, because I just don't recall the district court order having addressed this discovery issue.

[00:21:55] Speaker 05:
At all?

[00:21:55] Speaker 05:
It didn't address the district court's memorandum of opinion did not make a credibility finding.

[00:22:00] Speaker 05:
Are we to just infer it?

[00:22:04] Speaker 01:
I'm sure your honor is right about that.

[00:22:07] Speaker 01:
I mean, I emerged with the conclusion.

[00:22:11] Speaker 01:
I thought there were observations in Judge Checken's opinion about the review of discovery materials.

[00:22:18] Speaker 01:
I may have that wrong.

[00:22:19] Speaker 01:
I may not be remembering it correctly.

[00:22:21] Speaker 01:
But I thought she did.

[00:22:22] Speaker 04:
So on the face of the opinion, there is no finding about what discovery was reviewed with Mr. Rowe.

[00:22:29] Speaker 04:
There was also a very direct and important conflict between what Mr. Rowe said and what Mr. Brennan testified.

[00:22:36] Speaker 04:
But maybe this is just another area where

[00:22:39] Speaker 04:
remand counsel was incompetent because he says, I did not know they seized two phones from my car.

[00:22:49] Speaker 04:
And that was used at trial.

[00:22:51] Speaker 04:
And I would think that a good appellate argument would be, they didn't review some of the central evidence in the prosecution against my client.

[00:23:02] Speaker 04:
And if he had, he would have made some other choices.

[00:23:08] Speaker 04:
We're not focused on that today, so maybe further questioning isn't productive.

[00:23:13] Speaker 01:
That may very well be.

[00:23:14] Speaker 01:
I wish I had a better, a clearer, more specific recollection of exactly what Judge Chuckin said in her memorandum of opinion about this.

[00:23:24] Speaker 01:
I could have sworn that there was a recitation in there about what discovery materials she found had been reviewed, but I may have that wrong.

[00:23:36] Speaker 05:
Any other questions?

[00:23:38] Speaker 05:
All right.

[00:23:38] Speaker 05:
Thank you very much.

[00:23:39] Speaker 05:
We're here from the government.

[00:23:40] Speaker 05:
Thank you.

[00:23:50] Speaker 02:
Please record.

[00:23:52] Speaker 02:
Mr Brennan Rose Defense Council gave effective representation to row at his trial.

[00:23:58] Speaker 02:
And even if he didn't row wasn't prejudiced at all.

[00:24:04] Speaker 05:
How can it be effective?

[00:24:07] Speaker 05:
Not to, I'm not talking about once you gather all information, making a strategic judgment about what your defense should be, what witnesses to put on or not put on.

[00:24:17] Speaker 05:
How can it be effective to not even talk to them?

[00:24:24] Speaker 05:
With respect to what was going on with these computers, she talked to one person who did not work in the office.

[00:24:29] Speaker 05:
Next one.

[00:24:31] Speaker 05:
Off point.

[00:24:32] Speaker 05:
Dr. Wang, who said, yeah, there was some of this, but people didn't go back in his office very much.

[00:24:38] Speaker 05:
Now, if the other two had said, we were in his office all the time, that would have been a monumentally different calculus for a defense counsel.

[00:24:48] Speaker 05:
Not saying how we would review an ultimate decision, but it would be an informed decision.

[00:24:54] Speaker 05:
And this attorney, the trial attorney, didn't bother to get informed about something that was pretty critical to a defense case, critical enough that he tried to argue it with one hand tied behind his back.

[00:25:09] Speaker 05:
How can that be competence?

[00:25:12] Speaker 02:
I think in terms of evaluating competence, you have to look at the overall performance of the defense attorney in what he did to investigate the login procedures.

[00:25:24] Speaker 02:
And in this particular case, he had heard from Breaux himself about what the login procedures were at at the post office.

[00:25:32] Speaker 02:
So he already had that in his mind.

[00:25:36] Speaker 02:
Now he also then interviewed a second person who told him that other post officers told him that they did not otherwise go into Roe's office.

[00:25:46] Speaker 02:
And he also made a strategic judgment.

[00:25:49] Speaker 05:
My question was how you can make an uninformed strategic judgment.

[00:25:52] Speaker 05:
You just set it up.

[00:25:53] Speaker 05:
Mr. Roe said one thing.

[00:25:56] Speaker 05:
The one in-office witness that he interviewed said, supported part of what he said about people logging in multiple times and using each other's computers, supported him halfway, but then said, well, we didn't go back in his office that much.

[00:26:08] Speaker 05:
All right?

[00:26:11] Speaker 05:
That just simply raises a question, a conflict.

[00:26:14] Speaker 05:
You don't stop there.

[00:26:16] Speaker 05:
Then you talk to the others.

[00:26:18] Speaker 05:
No one would make an important life decision

[00:26:22] Speaker 05:
without getting further information in that situation.

[00:26:26] Speaker 02:
Yes, but he had already made a determination of that.

[00:26:29] Speaker 05:
And he made an uninformed determination.

[00:26:31] Speaker 02:
It was not an uninformed.

[00:26:32] Speaker 02:
He had already interviewed a couple of witnesses with respect to this particular point.

[00:26:36] Speaker 05:
Again, we've gone through this.

[00:26:37] Speaker 05:
The first witness didn't even work in the office, so put that one aside.

[00:26:40] Speaker 05:
So now we're down to one witness who corroborated some of his story, but for the other part was much more qualified.

[00:26:47] Speaker 05:
How can you decide to stop when someone says, yeah, I agree with part of what he's saying, but the other part, I don't know that I agree with.

[00:26:57] Speaker 05:
And you've got two more people who work in that office you could talk to to get a full story.

[00:27:02] Speaker 05:
How can you make a strategic judgment based on that scanty information?

[00:27:09] Speaker 02:
Well, again, you have to realize that he had talked to Rowan, if there was any one individual

[00:27:15] Speaker 02:
He gave him all the individual names.

[00:27:18] Speaker 02:
He had given names, but he had also Roe himself.

[00:27:21] Speaker 05:
He wasn't going to put Roe on the stand.

[00:27:23] Speaker 02:
Well, I know he wasn't going to put Roe on the stand, but he had already made a determination of exactly what the particular problems were in that case, what he was going to have to do to try to show that other people had access.

[00:27:34] Speaker 05:
And he also- I'm not going to go in circles here because you say he'd already made up his mind on his strategy without bothering to talk to the witnesses.

[00:27:41] Speaker 02:
Is that what you're saying?

[00:27:42] Speaker 02:
What I'm saying is that a defense lawyer does not have to speak to every potential defense lawyer.

[00:27:47] Speaker 05:
We're not saying everyone.

[00:27:48] Speaker 05:
Judge Wilkins' hypothetical was a good one where that wouldn't happen.

[00:27:51] Speaker 05:
But here, where you actually have someone saying, yeah, he's actually partly right, there's something to this, but there's this issue of his own office.

[00:27:59] Speaker 05:
So then we need to pin this down.

[00:28:02] Speaker 02:
Well, that is that is true, Judge, but I'd also like to point out in addition, you're saying, well, they did not interview those two witnesses, but there were other things that he did that showed that he did a reasonable investigation in this case.

[00:28:17] Speaker 05:
Other than that central defense offered by the defendant, he did some nice things over here.

[00:28:22] Speaker 05:
Is that competence?

[00:28:23] Speaker 02:
Of course it is.

[00:28:24] Speaker 02:
What happens is that the Supreme Court has said in Strickland that there's a great deal of deference that you give to choices that defense attorneys make.

[00:28:34] Speaker 02:
Informed choices.

[00:28:36] Speaker 05:
Is there a case that has said uninformed choices?

[00:28:38] Speaker 02:
Of course not.

[00:28:39] Speaker 02:
No, there's no case that says uninformed choices.

[00:28:42] Speaker 05:
I'm asking you why this is not an uninformed choice situation.

[00:28:47] Speaker 02:
Well, because he had already done an investigation.

[00:28:50] Speaker 02:
He had already made a determination in his own mind.

[00:28:54] Speaker 05:
I hear what you're saying.

[00:28:55] Speaker 05:
He had already talked to one.

[00:28:57] Speaker 05:
Again, two doesn't count for me because one didn't work in the office.

[00:29:01] Speaker 05:
So one witness.

[00:29:02] Speaker 02:
One witness and also Roseau testimony.

[00:29:04] Speaker 05:
And he made up his mind.

[00:29:05] Speaker 05:
enrolls own information that he gave to him but assuming granted there's a conflict between those two so a conflict you just say i just believe my client this other person actually wasn't saying he's wrong just had a perspective that we didn't people didn't go office office that much but imagine the next person said

[00:29:23] Speaker 05:
agreed with the first witness that we were using each other's computers.

[00:29:28] Speaker 05:
Most of us did not go back in his separate office.

[00:29:31] Speaker 05:
I mean, occasionally would, but pretty rare.

[00:29:33] Speaker 05:
But this other person, he was back in Mr. Rowe's office all the time.

[00:29:39] Speaker 05:
Would that perhaps inform a different strategic judgment?

[00:29:41] Speaker 02:
If those were the facts, if you had a witness who had testified at this evidentiary hearing that, yes, we were in there all the time, and we had other postal service employees who were using his login procedures all the time.

[00:29:53] Speaker 05:
Wait, you're at this evidentiary hearing.

[00:29:54] Speaker 05:
I'm saying, you're like me.

[00:29:56] Speaker 05:
It's like, wow, that would be hold everything.

[00:29:58] Speaker 05:
Still not saying how you would actually handle the defense, but it would be an informed judgment.

[00:30:02] Speaker 05:
It would have been like, wow, yeah, that would make a difference had we talked to that witness.

[00:30:06] Speaker 02:
If he talked to that witness and if those witnesses had said exactly what the defendant... Well, not if he talked.

[00:30:12] Speaker 05:
We know he didn't talk.

[00:30:13] Speaker 02:
We know he didn't talk to him, but we also know that what the attorney did in this case was a reasonable investigation because he talked to a couple of witnesses.

[00:30:21] Speaker 05:
You don't know that.

[00:30:22] Speaker 02:
Well, if you don't know that, well, let me then pivot to the prejudice issue here.

[00:30:26] Speaker 02:
And that's why I wanted to begin my argument.

[00:30:28] Speaker 05:
I just wanted to pin down with you on this, because you started by saying it was competent and reasonable, and yet we all agreed that uninformed

[00:30:35] Speaker 05:
strategic decision.

[00:30:36] Speaker 05:
I would agree though.

[00:30:37] Speaker 05:
I'm going to finish my sentence.

[00:30:39] Speaker 05:
It's not competent representation and there was a complicated story going on here at least.

[00:30:47] Speaker 05:
It was unclear story at the time he made a decision.

[00:30:50] Speaker 05:
It was quite unclear and foggy what was happening in that office and he just plowed ahead forward without that.

[00:30:57] Speaker 02:
I actually don't think it is all that unclear what was happening in the office.

[00:31:01] Speaker 02:
Again, if I could pivot to show what the government's evidence was in this case.

[00:31:06] Speaker 02:
The government's evidence is showed in part that there were text messages between Roe and his two co-defendants.

[00:31:15] Speaker 02:
And the text messages had at least one of them.

[00:31:17] Speaker 02:
And again, you can look back to the Board of Appeal, your court's decision in the direct appeal in this case.

[00:31:24] Speaker 02:
And so one of the text messages had tracking information.

[00:31:28] Speaker 02:
And if that's the case, then that shows that who was doing the tracking.

[00:31:31] Speaker 02:
It was Roe doing the tracking.

[00:31:33] Speaker 02:
It wasn't some other person in the postal office.

[00:31:36] Speaker 05:
Were those text messages from his own phone or a burner phone?

[00:31:39] Speaker 02:
I'm not sure what it was, but that was part of the government's evidence at trial.

[00:31:42] Speaker 05:
That would matter as well.

[00:31:45] Speaker 02:
Might be.

[00:31:45] Speaker 02:
But again, the point, and I wanted to pivot primarily when I started my argument, is that this court should start off with a no prejudice contention.

[00:31:55] Speaker 02:
Because Strickland says, one, you can do that.

[00:31:58] Speaker 02:
You don't have to go to the ineffectiveness problem if you don't want to.

[00:32:01] Speaker 02:
And second, the reason I wanted this court to go right to that

[00:32:05] Speaker 02:
was because in Massaro, the court said that the court that did the trial and that handled the evidentiary hearing has a most advantageous perspective on the case.

[00:32:17] Speaker 02:
Now Judge Chuckin in this case made a specific determination that the evidence was extensive and it was strong.

[00:32:26] Speaker 05:
We don't have any ruling from Judge Chuckin as you have conceded on this argument about failure to share discovery with the defense.

[00:32:34] Speaker 05:
Doesn't talk about it to the extent we want to give.

[00:32:39] Speaker 05:
Of course.

[00:32:39] Speaker 05:
The front row view of the trial judge gets enormous respect.

[00:32:44] Speaker 05:
So, when we have nothing but silence on as Judge Garcia mentioned a really important issue.

[00:32:52] Speaker 05:
We've got nothing to defer to.

[00:32:53] Speaker 05:
What are we supposed to do?

[00:32:54] Speaker 05:
And we've got a real conflict between Mr. Roe and Mr. Brennan.

[00:32:57] Speaker 05:
What are we supposed to do?

[00:32:58] Speaker 02:
In cases in which there is a conflict in testimony in an evidentiary context, like at a search and seizure hearing or whatever, where you have a conflict and you have a district court that does not make a specific finding of credibility, it is normally the practice.

[00:33:13] Speaker 00:
Or a factual finding.

[00:33:13] Speaker 02:
Or a factual finding.

[00:33:14] Speaker 02:
It is the normal.

[00:33:16] Speaker 02:
not exclusive practice of this court to defer to what would be the implicit determination.

[00:33:25] Speaker 05:
What's the implicit determination about an issue that's not mentioned at all?

[00:33:29] Speaker 02:
Well, when you say it is not mentioned at all, the district court said specifically in this particular case that he

[00:33:39] Speaker 02:
Roe did not specifically identify what discovery Brennan did not review to him.

[00:33:45] Speaker 02:
And then she goes on to say, and then Roe has not demonstrated how his review of all the evidence would have led to a different outcome in the trial.

[00:33:53] Speaker 02:
Now, she says that Brennan admitted to not having reviewed electronic evidence that did not involve him, including discovery pertaining to his co-defendants.

[00:34:03] Speaker 02:
And so the court then goes on to say, then Roe has an established prejudice in this case.

[00:34:08] Speaker 02:
So the district court did make a finding of no prejudice with respect to that.

[00:34:12] Speaker 05:
But what about this dispute about these phones?

[00:34:15] Speaker 05:
I mean, I don't know what he means by electronic evidence, but if that means phones found in his car, or they were burner phones, that would be important to review with your client, because he already had arguments that a piece of paper found in his car was more likely associated with his

[00:34:33] Speaker 02:
Well, that's true, Judge Malapit, again.

[00:34:34] Speaker 05:
The co-defendant is the mother of his child than him, and he could have explained the same thing about the burner phones, equipped the defense attorney to be much more effective on cross-examination at a bare minimum.

[00:34:49] Speaker 02:
On direct appeal from this case in evaluating the extensive evidence against Roe, this court referred in part to the incriminating evidence from the text messages.

[00:35:03] Speaker 02:
And they've reviewed that as incriminating.

[00:35:05] Speaker 02:
And we view that again as part of the reason why Roe can't show any prejudice.

[00:35:10] Speaker 05:
Why would we have bothered remanding if our analysis of the evidence had already foreclosed any finding of prejudice?

[00:35:16] Speaker 02:
I'm not saying that.

[00:35:17] Speaker 02:
I'm saying that in reviewing the evidence that the district court did, the district court in part relied on the evidence that was described by this court on the direct appeal in this case.

[00:35:28] Speaker 02:
And what we're saying is the same way she described it.

[00:35:31] Speaker 02:
And she was the trial judge as extensive and strong.

[00:35:37] Speaker 02:
And when you take all that evidence and view it together and not as isolated bits and pieces, the evidence against Roe was absolutely, in our view, overwhelming.

[00:35:48] Speaker 02:
And so that, yes, there may have been something that might have been done a little bit different.

[00:35:52] Speaker 02:
Brennan may have interviewed a witness here.

[00:35:54] Speaker 02:
He may have done a little bit review of discovery with respect to the surveillance tapes that involve somebody else.

[00:36:01] Speaker 02:
It would not have made a difference in this case.

[00:36:05] Speaker 04:
But the way you've just described it is that

[00:36:07] Speaker 04:
one of the key pieces of evidence was the texts with Brantley.

[00:36:11] Speaker 04:
And that's what he says that his lawyer didn't review with him.

[00:36:15] Speaker 04:
And maybe he would have been able to come up with a defense to that key piece of evidence against him in the case.

[00:36:21] Speaker 04:
But his claim is that his lawyer never reviewed that evidence with him.

[00:36:25] Speaker 02:
Well, Brennan said he did review all of the important evidence.

[00:36:29] Speaker 04:
But we all agreed that there's no explicit finding from Judge Chutkin about what evidence the lawyer reviewed with the defendant.

[00:36:37] Speaker 04:
So, if it were the case that texts from these phones found in his car were the key thing to incriminating him, and his lawyer never showed him that before the trial, and it's his words, both he and the lawyer were both shocked, that would be a pretty good claim of

[00:37:00] Speaker 04:
arguably even just deprivation of the assistance of counsel.

[00:37:03] Speaker 04:
You're withholding the key evidence, so we can't prepare for trial.

[00:37:06] Speaker 02:
Rose said that he was surprised, but Brennan said he was not surprised.

[00:37:10] Speaker 02:
Brennan was not surprised.

[00:37:12] Speaker 02:
If you have that conflict, our position is you get a conflict between the defendant and the government's witness at a suppression hearing, and the district court denies the hearing, then our theory is, and our position is, that you have to accept the testimony

[00:37:30] Speaker 02:
of the witness who edited this particular case, I reviewed all of the relevant evidence with him.

[00:37:36] Speaker 02:
I did not review the discovery relating to the tapes of the co-conspirators.

[00:37:42] Speaker 02:
So we would submit that there's the implicit finding that the district court

[00:37:47] Speaker 02:
found.

[00:37:48] Speaker 04:
And even if the district court didn't make that... Another question about that.

[00:37:52] Speaker 04:
So to be clear, where my concern would lead at most would be a remand on the theory that we don't know what Judge Chuckin found about the extent of the review of discovery.

[00:38:01] Speaker 04:
But you've relied on this Johnson case, and there's a question about that case, for this proposition that we can sort of make our own fact finding.

[00:38:11] Speaker 04:
Am I right?

[00:38:11] Speaker 04:
That case involved, there was just no written findings at all.

[00:38:16] Speaker 04:
and in ruling on a suppression motion, it seems at least a bit different where we have a pretty extensive opinion from the district court and the government is still asking us to sort of impute an unstated factual finding to the district court.

[00:38:33] Speaker 04:
Do you have a case that looks more like that?

[00:38:35] Speaker 02:
I believe I cited the Evans case in my brief for the proposition that in normal context where there are no specific findings of fact,

[00:38:44] Speaker 02:
made by the district court below, then on appeal, you normally assume that the facts are in the light most favorable to the prevailing party.

[00:38:51] Speaker 02:
So if you have a dispute here, that would be if Brennan says, I did review all of the important

[00:38:59] Speaker 02:
I just did not review the testimony relating to the co-conspirators on the surveillance tapes.

[00:39:06] Speaker 02:
Then we would submit that the district court having ruled against a role in this context should accept Brennan's testimony on that particular point.

[00:39:14] Speaker 02:
And in any event, I mean, you mentioned about sending this back for a remand.

[00:39:19] Speaker 02:
And as much again, the district court said that Roe's review of that evidence would not have changed the outcome of this trial.

[00:39:27] Speaker 02:
So even assuming there may have been an error in this particular setting, we do not concede that there was one.

[00:39:32] Speaker 02:
There is no prejudice in this particular case.

[00:39:35] Speaker 02:
I know I've said this a couple of times, but Judge Chutkin said the evidence in this case was strong and extensive.

[00:39:42] Speaker 02:
And she had that advantageous position over the case that the Supreme Court mentioned in Massaro.

[00:39:46] Speaker 04:
So can I ask you a clarifying question?

[00:39:48] Speaker 04:
Are you familiar with the actual evidence that came in at trial and what evidence came from all of the different phones?

[00:39:55] Speaker 02:
I just have a general idea of the evidence that came in.

[00:40:01] Speaker 02:
I did cite to the government's opening brief in this court.

[00:40:06] Speaker 02:
And that brief does contain a fairly extensive recitation

[00:40:10] Speaker 02:
of all of the evidence that's pertained to Rowan.

[00:40:14] Speaker 02:
I'd ask you again, Judge Garcia, that this is not a question of looking at all the evidence, including the surveillance tapes and looking at unexplained wealth and all of that in isolation, but to look at them together.

[00:40:26] Speaker 02:
And when you look at all of that evidence together, there's not a real chance that he could show any likelihood that he was prejudiced by any errors committed by the defense attorney.

[00:40:38] Speaker 05:
The whole, I guess, I mean, if you have a case, I mean, from this court or another court, it would be helpful where this, we round up everything in favor of the government, because the district court ruled for the government, even when there's no discussion of a disputed fact issue at an ineffective assistance of counsel hearing, not a suppression hearing.

[00:41:00] Speaker 02:
I didn't find a specific one, but I would imagine that the rule should be the same in both contexts.

[00:41:06] Speaker 05:
Well, I would imagine not, because the point of a whole ineffective assistance of counsel hearing is not to review the trial that happened, but to figure out what didn't happen by counsel and whether, if it were incompetent, these are all big questions, if competent counsel

[00:41:27] Speaker 05:
had had the reins and investigated evidence and talked to witnesses and been able to formulate a defense strategy that way.

[00:41:37] Speaker 05:
Would it have been a different record?

[00:41:42] Speaker 05:
With the trial, that's the whole question with the trial, would it have, was there the chance of the trial would have had to come out differently, right?

[00:41:48] Speaker 05:
That's the prejudice standard.

[00:41:50] Speaker 05:
And so I'm not sure how we can in an effective assistant council same say, well, given the ineffective assistance of council, everything was overwhelming.

[00:41:58] Speaker 05:
When.

[00:42:01] Speaker 05:
the district court could have found that, in fact, it would have been a different story.

[00:42:05] Speaker 05:
I'm not saying they would in this case or would not.

[00:42:08] Speaker 05:
I'm saying we have such a vacuum of information from what Mr. Brennan didn't do and then what remand counsel completely dropped the ball on that it's, I don't know how we can just go, well, let's just assume everything would have been the same and the government's overwhelming evidence would have been just as overwhelming.

[00:42:26] Speaker 05:
It was all circumstantial evidence as to him.

[00:42:30] Speaker 05:
It was burner phones.

[00:42:32] Speaker 05:
It was his computer in a place where people used others' computers.

[00:42:36] Speaker 05:
I'm not saying you can win on circumstantial evidence.

[00:42:38] Speaker 05:
There's no doubt that you can.

[00:42:40] Speaker 05:
And I'm not saying it wouldn't be enough.

[00:42:42] Speaker 05:
But you don't have videos of him.

[00:42:48] Speaker 05:
And I think, if I recall, and you can correct me, a lot of the text messages were from burner phones, not his personal cell phone.

[00:42:55] Speaker 05:
So it's one of those where it's hard to

[00:43:00] Speaker 05:
put into my head at least what this would have looked like if we'd at least had a full record on the competence of counsel in the first place.

[00:43:10] Speaker 02:
Well, I think the record is adequate.

[00:43:12] Speaker 02:
And again, one salient piece of evidence that goes against him is that unexplained wealth.

[00:43:20] Speaker 05:
That was again another investigation problem, though.

[00:43:25] Speaker 02:
Yes, but let's assume, with respect to Cranco, that he didn't interview here, she might or may not have said that she had won $20,000 in the football pool.

[00:43:37] Speaker 02:
That wouldn't have even come close to refuting the government's evidence that Roe had for you.

[00:43:43] Speaker 05:
He also needed to best get more by the business, go out to the track and see what he was wearing.

[00:43:47] Speaker 05:
I mean, this guy's winning $20,000 in football pools.

[00:43:50] Speaker 05:
Maybe he's a big stakes gambler at the racetrack, too.

[00:43:53] Speaker 05:
I'm saying we don't know what we don't know.

[00:43:57] Speaker 05:
And after a remand, we still don't know what we don't know in this case.

[00:44:02] Speaker 05:
It could be very well exactly what your view of the evidence is, but we don't know what we don't know about what the defense could have discovered.

[00:44:17] Speaker 05:
and either put on as witnesses or been able to much more ferociously attack the government's case and change the complexion of their.

[00:44:25] Speaker 02:
But again, it was a strategic decision on his part that even if he had put on the $20,000 evidence, then the government would have come back and said, yeah, but we have a lot more unexplained wealth.

[00:44:41] Speaker 02:
And Brennan made a strategic determination

[00:44:46] Speaker 02:
As he said earlier, nothing messes up a defense is putting one on.

[00:44:50] Speaker 02:
And if he put on the $20,000- That's a very odd statement to make.

[00:44:54] Speaker 02:
He was talking about you have to close all the loops when you're presenting an affirmative defense.

[00:44:58] Speaker 02:
And his point was simply that $20,000 wouldn't have done it.

[00:45:03] Speaker 02:
He had way too much unexplained wealth.

[00:45:05] Speaker 02:
$20,000 would have gone against me.

[00:45:06] Speaker 05:
And that would be a great strategic judgment if we knew that was the whole story about his alternative sources of income.

[00:45:13] Speaker 05:
I mean, you have said an uninformed strategic judgment is not competent.

[00:45:19] Speaker 02:
I don't buy that premise that it was an uninformed.

[00:45:21] Speaker 05:
I'm just, I'm not saying it is yet either, right?

[00:45:24] Speaker 05:
This is what we don't know from the reading and proceeding, but if, well, it was uninformed and that he didn't collect the information.

[00:45:30] Speaker 05:
I am saying that, um, but it could have been, he talked to everybody and it all would have come up way short.

[00:45:36] Speaker 05:
And then it would be a very informed and probably wise strategic judgment not to try to tip the whole thing based on one football pool.

[00:45:44] Speaker 05:
I get that.

[00:45:45] Speaker 02:
Again, our position is that he did a reasonable investigation because he did ask her about his so-called winnings at the track.

[00:45:55] Speaker 02:
He talked to Harris about the promotion business.

[00:45:58] Speaker 02:
He talked to the family about the football pool.

[00:46:01] Speaker 02:
In our view, that was a reasonable investigation, even if he didn't interview Cranco and even if Cranco would have testified that there would have been $20,000 from a

[00:46:11] Speaker 02:
football pool, that would not have eliminated the vast degree of unexplained wealth that the government had produced.

[00:46:19] Speaker 04:
Can I, if you'll indulge me, this is less of a question than a comment on how the government briefs and argues these cases and it goes to prejudice.

[00:46:27] Speaker 04:
So it's not particularly helpful when we get a vague statement of reference to a brief in the prior appeal and to the district court's sort of general statement that the evidence was overwhelming.

[00:46:41] Speaker 04:
It's more helpful if we're actually

[00:46:45] Speaker 04:
pointed to what the relevant and most important evidence was.

[00:46:48] Speaker 04:
And to make that much more concrete in this case, we've been talking about investigation into who was on the computer and two phones that were seized from his car.

[00:46:57] Speaker 04:
We did go back to the trial transcript, and it looks like for almost two full days.

[00:47:04] Speaker 04:
The prosecution walked through real-time phone calls and texts from a phone not taken from his car, but that was seized from his person when he was arrested and that he stipulated was his phone.

[00:47:18] Speaker 04:
And if that's the case, then you would have had a very straightforward no prejudice argument that would have been much more helpful to the court because that was on the observed

[00:47:29] Speaker 04:
uh, marked packages being delivered and him communicating in real time.

[00:47:35] Speaker 04:
And it seems quite clear to me, if I understand that correctly, that there's no possibility that there was any prejudice here.

[00:47:42] Speaker 04:
But it is much more helpful if we're concrete in the briefing.

[00:47:47] Speaker 04:
It gives the defense a chance to respond and make sure we don't make mistakes.

[00:47:53] Speaker 02:
I acknowledge that Judge Kirksey.

[00:47:54] Speaker 02:
Thank you.

[00:47:56] Speaker 02:
No further questions.

[00:47:57] Speaker 05:
All right.

[00:47:57] Speaker 05:
Thank you very much.

[00:48:01] Speaker 05:
OK, Mr. Coburn, we'll give you two minutes.

[00:48:04] Speaker 01:
Very kind of you, Your Honor.

[00:48:05] Speaker 01:
Actually, as Your Honor noted, I reserved two minutes.

[00:48:07] Speaker 01:
But as I was listening to both parts of this argument, I'm not sure I have anything affirmatively to add.

[00:48:16] Speaker 01:
But of course, happy to answer any questions the panel might have.

[00:48:20] Speaker 05:
Questions?

[00:48:22] Speaker 05:
All right.

[00:48:22] Speaker 05:
Thank you very much, Mr. Coburn.

[00:48:23] Speaker 05:
You were appointed by the court to represent the appellant, Mr. Rowe, in this case.

[00:48:28] Speaker 05:
And we thank you for your assistance.

[00:48:30] Speaker 00:
Thank you.

[00:48:34] Speaker 05:
Case is submitted.