we have several cases on our docket this morning to handle although we might change our minds claim to take a break after the third case just to let you all know housekeeping purposes the first cases united states of america versus wi includes the court village for all the con begins what i'd like to discuss this morning is whether the district court violated federal crime procedural eleven c one and whether that violation should lead the court to exceptions the district court crossed that line in this case it's crossed that line perhaps because it misunderstood the law particularly the supreme court's recent decision l course and it seems like the description of the proposed plea at the june hearing and then the actual clean that's in the record look very similar were there any changes between the two  and he rejects that the prosecutor said it's open till july eighteenth or something like that and then ultimately we know we have an august plea what happened in between in other words obviously he rejected the plea but they kept talking in some form or fashion with or without the judge's help and putting that aside and trying to get the facts of this plea what happened in between i think the record is not very clear on that we can get pieces of well i'm trying to get ultimately to a substantial rights question because i'm trying to understand how if any way the judges cut so even if we assume argument or the judge's comments were improper i'm trying to relate them to august so i'm trying to understand the facts but of course you should also  concern but i think that the reason that's important judge joan is it's not critical in any way but it is part of the context because the the district court itself mentions this at the plea hearing and i believe in its origin  motion withdrawn which is a separate issue that i don't mention will spend much time on today and so the court recognizes that that's part of the context and the court says in its order i believe  that it had made some other sort of in monish which we don't have a record of because i guess the hearing was in a different case to mr wiggins after or on that i guess after that august seventh hearing so there's s ok are these mr wiggins had long been preparing for trial they've been fighting this hard he had flat out rejected this and out this june twenty seventh pleading i think the facts there are trying to get the in between because it wasn't like the next day he ran out an accepted there was all this other stuff they happen including the release of the two mothers of his children and all of that so i'm trying to understand what is it that would show us from the record that the judge's comments were what continued to loom large rather than all these intervening events i mean what's happening in between that's what i'm trying to understand but i'm suggesting she that they start so strongly that us down hill and what we continue to do is gain momentum ok because because the judge of what i mean even if improper there was nothing coercive in the slightest about what the judge is doing the judge is trying to explain and you know you say the judge is a strong personality  also a very explaining personality so he's explaining so even if we can see that that's improper even if we accept that there's nothing worse where he is coercing him like what is going to be a tough trial on you or whatever in fact he says i'm ready to try this let's try this this is your decision totally making that clear i think there are two things there are one is that the law is clear that this is inherently coercive particularly when it's when the judge addresses and the third what part of that we're looking to cancel victim's rights but i think you have to look at it from the beginning ok this is not a case of oh here's the hearing here's the plea we just look at the time you have to look at what happened here ok the judge took over that hearing the judge had no right to do any of that and the law is important here that's one and two i mean the thing is you're basically arguing since you're not yet telling us anything new that if you in fact engage in plea discussions as a judge it's plain air period substantial rights prong for were done there not really we don't need to it's like an automatic here ok tell me you tell me what differentiates this then from the garden variety interference simply because this seems fairly light as interference with glee goes in my hand so tell me how this is not light and that this is bigger and that this then impacts prong serene for ok and i about what you told him make him answer questions ok that's a very strong intervention by the district court that's after the defense counsel says he wants to put stuff on the record no the defense counsel said he wants to put on the record that he refused t plea that's perfectly ok the judge needs to stop there the defense counsel asked the judge to examine the fence counsel if there was going to be a hard deadline and that's that record fifty nine one  one and fifty nine or the district court directs him get your client up here and i want to hear who is him above the plea ok so the judge is sending a strong signal at the very beginning that i'm interested in a plea and is increasing the inherent powers of pressure any time it gets involved then the judge still doesn't stop after he makes defense counsel he then gets into it he says are you going to get more t withdraw the guilty plea if it's the so overwhelming what this judge did why would he mention that because that would seem like a good argument it would seem like a good argument perhaps that you know if we don't win this appeal it down the road that's an ineffective assistance of counsel on him i'm against didn't feel any coercion and so it's only after the fact that lawyers are trying to find a reason to set aside this whole situation that they find this rather than that wigan's because if wakens felt coerced as you say is a strong personality would have told his lawyer and i would like to deal persuade you that i would like to go back and look at it and maybe see i think it's very strong i think what's very strong but the court says at the ruhleben hearing so i'm telling you that above the non binding recommendation give in and he writes a letter to the judge and he says i want to withdraw my plea because i'm innocent he makes the whole record contains these strong assertions of innocence and i think that's an important fact here that what we ha was somebody who felt pressured not just by the situation not just by the prosecutor's ability to count seemingly on the sleeve but by the fact that the judge made it clear you need to pl and he would have gone to trial which is the standard and reasonable probability is a standard that the supreme court's been telling us in strickland is less than a preponderance it's just a probability that on this record with these facts there is a reasonable probability that mr wiggins would have gone to trial even but for the judge's conduct not all this other stuff i mean this seems very much centered on the effect of his and the situation on the mothers of his kids they it seems to be his whole focus which has very little to do with the judge that's it that's the focus that came up in the motion withdraw here which is a separate issue  and even when he's explaining about them others he's saying the people are going the governments of well he says that they're lying well that's the point the whole point of trial is to test the government's allegations and the fact that he believed in his innocence he wanted to test those alle  he wanted to show that it wasn't true and these pressures are what made him momentarily give it and the judge played a big role in that because the judge puts the idea in his head most strongly that a plea is what you should do a plea best for you and then when you add in thinking about mothers and his children and his children it may be that jake kicks in so you so on the whole record there's a substantial chance reason probability that he would not have pleaded guilty and he would have gone to trial and so because the court involvement in this by laying the clear law putting intense pressure on mr took long before i was appointed why i took so long yes this is true in part but you know so that the fact right now at this point at the time the district court made its decision i don't think it w that much against the government they are the institutional litigant they do have the u s marshal service all around the nation at their disposal they can find these people they can serve these people they can bring them back so i thought on that that  that's you're saying that factor just shouldn't be a factor because at least when the i mean well how alice is this going to come up the united states is always going to be the party that talking about it that's right and because of that the united states perhaps should ha there's just a little bit stronger factors in that particular case and i think they did that here i think they should be as witnesses would be particularly hard for the marshal services to fund we could put a lot of focus on the fact that the two prosecutors have left government service one for retirement and one for another may please the court this is a rule eleven plane air case and as dollywood strikes that particular facts and circumstances matter and the first key facts of what the judge actually that the first mention of the plead remit is by defense counsel and the defense counsel says there's a twenty year cap or if it goes to trial he's facing a life sentence and the court mainly reiterate what the meaning of a twenty year cap is what a mandatory minimum sentences in one of consecutive sentences the reiteration of those factual statements didn't express an opinion didn't create you were teaching a class for a new judge new judges wh would tell him they should or should not have a colloquy such as these three or four pages that we're talking about well the rule is the court may not participate in discussions not that the court ma brought up about whether there was an intersection between the to the left or in the fry opinions and rule level and there i saw one there is one published opinion now it's the hempel case and hempel case was a terrible case then pl case was of let me tell you about the number of brothers they could have gotten a six year play instead they got thirty years so it was blatant coercion but the court talked about leffler and fraud and it said that the supreme court suggested that trial courts should adopt certain measures to ensure the defendants are fully informed such as documenting the terms of the negotiation process by requiring that all pleas are in writing and by making any formal offers and then the court goes on to say this quote the district court's comments went much further than documenting the p its terms as contemplated in fraud and then it goes on say the district court clearly implied that the plea would be preferred we don't have those facts here but that sends indicates to me that there are some that there relative position of the litigants i think is the same if we were to write on this line between lefler or making sure the terms are known and rule eleven prohibition on and participating in we're going to indulge in this fought that there is some rule for the district court when the plea is rejected it does seem to me there should be a bright line perhaps there isn't and that's fine but i would be interested in how you would draw it if you were to dr says this he says the court's comments when read in context do not reflect obvious improper participation so your on the plane there idea that you really need to show obvious in problem participation that it's is the challenger marks were made in the context of answering larry's inquiries addressing his misunderstandings about the guilty plea process and ensuring she understood the choice of pleading guilty or going to trial in that case the court found not not to be an overstepping of the line but it wasn't it wasn't it wasn't drawn particularly specifically when you discussed what so what other than the judge's comments at the june hearing caused wiggins to accept an offer you know six weeks later that he had not originally accepted near response to whatever answer i got on the rug i think there were two things i think it was four days before trial which was a great impetus for him to plead guilty and one day before the plea the prosecutor said well plead reman since two twenty maximum all recommend to twelve which is what he actually so i think those two i think those two things were about the release of them others when did that take place  was motivating and well it could be it that that's not an improper it's not a proper consideration pleading guilty but he said he originally the prosecutor was going to recommend two hundred twenty months but then agreed to recommend two hundred twelve so actually a better term one day before the plea ok and that's recorded are reflected in the reason why the reason i go through the beginning part is wiggins hasn't pointed to any statement by the judge expressing a preference for a plea over a trial and said the judge says i'm ready to go to go try the case that the one the one thing that he's relied on if you notice that there are not a lot of quotes from about of course of typed language and he says well the agreement jets of the agreement limits my sentence but this occurred in response to the defense counsel statement that there was no agreement as to any sentence and then the court asked do you understand then we get says i don't understand that and the courts has let me tell you what that means to plead remit that your lawyer explained you earlier limits my either a blatant coup worsham case or i'm going to agree to a sentence we have nothing like that here and that it's important to bring up the fact again the judge change that you brought it up there's motions to withdraw the plea there's no mention about judicial participation how can there be any appears at the hearing in an and it's heard at the hearing and therefore he wigan so he's not just relying on his lawyer to file papers hearing he never complained of there's no complaint about you to show participation there's nothing in that hearing about judicial participation and so the status conference is the twenty seventh of june the plea was forty two days after the conference and as i mentioned four days before trial and one day before the letter offering recommendation you also might i think need to look at that the subject is first introduced by defense counsel and the way it's introduced is quote i would like your honor to inquire of another matter now i know it's been said that he didn't really mean that but that's that's very unusual language to i would like your honor to inquire of them the matter and to start talking about the about the plea offer finding these factors have gone in as to in some cases homes as one of those cases as to as to whether the third prong has been met again he swore under oath that his plea was of course and that the government could prove would lead you to believe he was in a neutral arbiter i think that's all i have to say on the first issue i didn't hear much in the second issue do you want me to go through the the the the the points on the i think maybe the prejudice of the government the council says well the two prosecutors who were no longer available and prosecuted all the other folks there fungible so it doesn't really matter that they're no longer available well clarke in clark they found prejudiced in the government work he investigators were no longer available so i think that's that's analogous and then as to that as to the to the reason itself indicted they pled guilty to trafficking in persons and they're subject to the courts sentence the the they're in fact the court sentenced on the time served but the prosecution couldn't agree a little bit there is no need for the district court to put specific pressure i think the context of these comment shows pressure but this court has made it very clear that discussion of the probable consequences trial the probable consequences of the plea that increases the here but to the extent the government is saying say you are going to get more time or simply that he said if you go to trial a potential sentence if you go to trial and you get convicted you will get more time than you will end  six no i just read it again this morning he didn't say you will be possible sentences higher no in fact he is saying you will because there are mandatory minimums involved and consecutive sentences involved so you are going to get more time and so when he's explained the team he's saying you're going to get it you know you're right he's saying that there are restrictions on his ability to work on a sentence but i don't know that he sat down and mapped out the exact amount of time he said there's a mandatory minimum said i don't know how that would work out on five but again the important point for the law is that the government suggesting there has to be some sort of blatant coercion and that's not true as to your question about leffler fry and what should we tell the district court i mentioned in my brief the cross case from the sec seventh circuit which cites job ok can you just be clear then for me if he had gone to trial and been convicted on all the counts what would the mandatory minimum have been taking into account all of the mandatory consecutive court is not changing all the rules not changing will lead because there are a few members of the bar who don't do their jobs when fry's says it can be put on the record fry is not suggesting and it's a fourteen hour waiting fourteen zero nine one three two supreme in discussing it fried doesn't change that frye says you could make a record and if you read fry i think it's mostly suggesting when it refers to the arizona they could do it in writing by filing things with the court before trial so i would ask that the court reverse