a please the court good morning counsel greetings to new york my name is michael levine and i'm representing mr mcelroy your honour's i'm going to address three issues the forever waiver the withdrawal of the or the failure to withdraw the defense exhibits and what i'll refer to as the masturbation video with respect to the  waiver the waiver was invalid because my client was not informed of the meaning of supervised release he was told there was going to be a supervised release term of five years to life he was asked if he understood it he said yes but we've never taken a client statement that he understands something as the dispositive question there are you understand by pleading guilty you understand all the rights you're giving up yes that does not excuse a judge from determining that the waiver is in fact knowing and intelligent and we have well there's no prescribed script we require a judge to engage in a colloquy to determine that in fact the defendant does  know what he's giving up on so let me ask you this at the time that the colloquy took place the government was asking for a life sentence yes of course if there were a life sentence there wouldn't have been  release aspects at all and it would have been out a stroke so you have a situation where it might have happened but i guess i wonder how far you have to go what did the government have an obligation to tell him like there are a lot of different kinds of prisons in the federal system alone and describe some of the ones that you might go to and how people eat lunch there and whether they have solitary confinement it's not that i have to do that do they you know of course not so the question is really what what enabled him to make a knowing and intelligent decision under the circumstances no we got a couple of cases gerritsen we got forrester which i find both to be in opposite they involved different issues and it seems to me the real question is whether he received enough information regarding the possible penalties to make his waiver knowing intelligent is that the i agree with you i get what it what are we to look to in this case to say that given the facts as they existed at the time of the hearing that he didn't have the information he needed to make knowing and intelligent waiver well we look to the record we look to what was said we look to the fact that has no legal training that he's a lay person we looked at the fact that he's supposed to be what the law says he's supposed to be advised of the maximum penalties supervised release is part of the penalty it's not if it's a life sentence true but there was being contained whether it was going to be a life sentence was being contested because that was the the effect of the enhancement was being contested there was a motion that was under submission and ultimately prevailed so  saying you think counsel that before you can have a forever hearing where the defendant knowingly waves his rights you have to complete sentencing you really have to know everything  going to happen because otherwise you just speculating that what you're saying no not everything but important things you have to know in the norton things and one of which is how long you're going to go to jail that's very important right yes absolutely he would have to know before for other what his sentence was going to be the right he'd have to know before forever that if in fact that you weren't sentenced if this enhanced meant didn't apply you're still facing a maximum sentence of fifty years on count two or count one i can't remember if you're just fine you're still you're still facing a supervised release term of life and let me explain to you would supervised release this supervised release means that comes after after you're sentenced to know i don't think we've ever required that the defendant be given explanation of surprise released in the context of radda hearing it seems like we've only made that a requirement in rule eleven corpus case decided by this court had a california plea and i cited in my opening brief and there wasn't it was a special parole term under california law there was a required special parole term that followed any sentence but the the defendant was never informed of what special parole was what it meant what would happen and this court found the plea invalid i had nothing to do with ruhleben but if i recall correctly that did not involve a life sentence i can't recall your honor frankly i think it was considerably less so understandably if you're saying you know you got it maybe fifteen years twenty years then of course the release element is extremely important i guess what i struggle with here is that it seems to me if you're correct then you have to complete the sentencing before you have the for other hearing because otherwise the defendant cannot possibly kno all to which he in this case is going to be subject that's not our laws and judge i respectfully disagree with that conclusion i think that's carrying it way too far all he has to know is what is supervised release in other words if i don't sen you to life is your call your look tourney is making a motion to strike the life it may not be a life sentence but let me tell you if there is a term of years you're going to be on supervised relief for life let me tell you what happens that means if you violate you go back to prison and you can go back to prison for the rest of your life you get supervised release again and that can be repeated repeat he should know that but that's speculative by what the court's going to do so let's just say hypothetically if the court had not followed the defense recommendation had imposed a life sentence we wouldn't be talking and i agree with you are you so might might what i'm struggling with here is what do you where do you draw the line here it seems to me that if you're right you literally have finish the sentencing before for other hearing takes place that is it then you know exactly what the guy sends to and you can explain exactly what each element of the punishment does you don't have to you could just he just could have done it right there as i just sat with all due respect you don't have to wait i agree that would be that would be silly it just supervised release is an inherent part of the sentence it is part of the punishment so are you reading our requirement consequences of a plea one of them is supervised release i'm not talking about subject to deportation i'm not talking about collateral consequences i'm talking about an essential part of a federal sentence which is supervised release then should understand what that is why would why would not those other points be just as important if it wasn't to say he was an illegal alien and as a supreme court has recently indicated that's extremely important if you didn't tell him that grounds under your statement here and say look you know when i had my forever hearing they did not tell me that if i ever got to certain point i would be removed from the country well i don't i can't bets that that's a different case that's not before us it's an interesting point but if you look at it we do know that although rule eleven is the street don't have to follow the strictures of rule eleven here rule eleven requires a statement about supervised release all the good diners versus moran says basically what you need to know the voluntariness and knowing this of pleading guilty is essentially the same as a forever waiver you need to know the consequences and the punishments  unique aspect in this case is is the enhancement and whether or not the enhancement yet whether or not it may or may not apply and i'm just what do we do in these circumstances because i  think that's that's what the twist is here but mr mcc l o y was not informed of the statutory maximum of fifty years so i think that's that's another aspect of my argument yes and so  sentencing guidelines are complicated and i think our court noted in gerritsen there's no way to know prior to trial whether a statutory sentence scene and has been for a prior conviction will apply later at the time so the defendant faces a number of possible outcomes so isn't that an unmanageable standard for us to require of the district court on or what what should happen when there's a po what should happen is if there's an enhancement as there was in this case and this is unique if there's a life sentence and a handsome and and that's the heart that does not happen in every case that's been challenge that's been challenge that's being sick that's being challenged and where the judge has said i'm going to consider this i'm going to consider your motion so that means there's a there's a chance that there's it's not there's not going to be even hanson and that kind of case the this should be a statement of the  supervised release and what it means yes so that's that's that's narrowing it down significantly so if you got two things going on here you've got supervised release and then you have the possible penalty yes for me what was interesting is that he an informed of the fifty years that's true that's a figure out so what does it mean regarding the fifty years and then you already talk i think about supervised release well under and why doesn't carrots and control that situates two prong it's to promote gerritsen was just a minor i think it was between twenty two years and twenty years it was a trivial thing to my reading of the of the distinction garrisoned is totally and applicable here here you have a failure to advise on the maximum fifty years sentence  right to counsel but that wasn't this that was a possibility that he could get life in prison yes he knew that yes he did yes he did why isn't that the end of well because that depended on me that the pendant on the validity of  particular enhancement will apply with some me a significant this that he waived his right to counsel knowing that he faced the possibility of a life sentence yes and also knowing yes and also knowing that council had filed and the court had under submission a motion to strike the life and handsome and yes he knew all those wrong he knew they knew that but he know that that motion could fail yes but he also  release it seems to me that that if if you know it's a possibility and you're willing to take the chance that you could get a life sentence then the issue of supervised release becomes largely irrelevant since you're not going to be released not if at the same you know what we have established in this country is the right ineffective assistance of counsel and he may have had the ineffective assistance of counsel but he chose that and he chose that well this is the poster issue for wired people shouldn't represent themselves in problems he displayed in law school classes here his able counsel had succeeded in keeping the judge and the judge agreed not to introduce before the jury his prior conviction or the fact that he was a registered sex offender but he and his wisdom fires as lawyer enters the book has the fred a call a query and then when he is representing himself proceeds to introduce the very exhibit that identifies him as a registered sex offender now the government says well that's invited error that's not the issue he introduced he introduced but then upon the government pointing out to the judge saying oh he's open the door now i want to introduce the prior conviction now i want to argue that he's a priors registered sex offender at that point before the jury sees the exhibit this is all out of the presence of the jury it's in well what would it have cost anybody to withdraw the exhibit what would it have cost anybody to withdraw the exhibit there was no prejudice to the government not no prejudice to the government it was a simple act of ok withdraw the exhibit there was no the government does not maintain there was any prejudice any prejudice from that all of the examination of the detective was all in all the statements were in the same arguments could have been made and there would have been absolutely no prejudice instead we have now the jury being or its truth the government did not overtly say an argue in closing argument oh he's a registered sex offender and the government didn't argue that he had a prior conviction it's true but the government did subtly make use of the affidavit and said i want you to carefully read this don't i don't know but i know the exhibit went to the jury but i don't know if there was a specific request to see the exhibit or not i'm sorry i just don't know and i counsel thank you very much  please the court kelly's just been appearing on behalf of the united states if i may begin by answering judge corman's question in the district of oregon our standard practice is that admitted exhibits all go to the jury so they don't have to request them let me talk so if i can ask you some questions regarding parada and some of the along the lines we were discussing here i guess i'd like to know what your position is when there's a possible sentencing just curious you don't need to make any reference to what he would face should the sentencing has meant not apply and if so why and let me start by answering it this way i think if we step back a little bit and look at the purposes of ferraro which are very distinct from rule eleven for at is designed to ensure that a defendant who is waving one constitutional right to counsel is able to exercise a different constitutional right and that is to represent himself so trial judges have to walk a fairly fine line about making sure that they warn the defendant of the dangers of self representation without overdoing it now in direct response to your question though about the statutory maximum i think this is pretty well covered by gerritsen which is the court's obligation infrared is to ensure that the defendant appreciates the magnitude of what he's facing and that doesn't require a lot of specific detail in this case mr mcelroy face a potential life sentence in one of several different ways so if the judge had agreed that the government had established through his prior convictions the statutory enhancement he faced a mandatory life on both counts one and counts two alternatively as was explained to him during the forever colloquy he also faced a potential life sentence if in fact the court face and still decide to represent himself you're saying that's that's no error but isn't that the type of reasoning that we rejected in forster can you talk to me about forrester because it seemed like the court there found error even though it distinguishable here or at least the underlying point in forster that the defendant have the correct information the right information and needs to have it to make a fully informed decision and if there's a possible sentencing in hand smith he's told he might get life you can you know you're looking at live but what happens if there's the sense in has doesn't apply does he's thinking well ok but if the sense you had some doesn't imply a set and there's only twenty years that i have to worry about when actually here it was fifty years and i just think it complicates things and i'm trying to figure out when looking at forster and gerritsen what the obligation is and what should have happened here  it seems like he was only given partial information and i'm not sure and i want to hear from both sides is that a problem when he's only given partial information and my answer is no there was no problem here and for several reasons the first is he was told accurately and forrester involved a district judge but you agree he wasn't told the fifty years i agree he was not told the fifty years and why wasn't that why is that not significant and i think for several reasons f he was he was told that even without the enhancement he faced a mandatory minimum of twenty five years so he was given that piece of information he was told that if the penalty if the enhanced penalty applied he faced a life maximum this case is factually distinguishable from forster in several respects first a district court and forrester basically mistakes made a mistake on everything did the accurately describe the charges and didn't accurately describe either the minimum or the maximum here the only element that we're missing is the statutory cap that would have applied but for the penalty unhandsome and so and again the but stepping which is that there's no requirement that a district judge has to engage in all of these calculations and determinations even at either the time of the guilty plea or at the time of the forever waiver so your honor and my answer is yes  in a perfect world he would have been told twenty five minimum fifty maximum unless the penalty applies and then it is a life mandatory life but he wasn't but that doesn't matter because he was told look mr mcelroy if you want to represent yourself you're facing a horrendous amount of time whether it's fifty years whether it's life whether it's real life as a basis as a as a result of consecutive sentencing for a man who was forty seven years old at the time of this offense he was looking at a long time he knew that when he exercised his right to represent himself and how do you reconcile forrester i reconcile forrester because the court was wrong about the charge was wrong about the mandatory minimum about the about the maximum am and forests are only involved in one count this involved six counts which again if you run them consecutively gets us back to life it seems to me  because the judge was wrong inaccurate and everything told in forrester and here it was in the wrong you just didn't tell everything that defense counsel would have liked and tell but i'm troubled by the fact that if you follow his line of thinking i don't know where it stops it seems to me we're going to have appeals on every for every single forever hearing that somebody wants to appeal because we're going to say well you know they told me this but they didn't tell me that and they did told me that i would have changed my mind i don't think that's what the supreme court has said you need to be able to make of an effective decision and i guess i would pick up on what you're saying he knew all he needed to know that it was a very very serious nobody allied to him but is there other things they could have told him besides that within the complexity of the sentencing of course but there's no into that right is that a fair statement of the government's position it's a very fair statement and again i go back to what the fine because the defendant was aware of the magnitude of the risks that he was taking in engaging in self representation so i just and i think we are in a very dangerous position if we start trying to micromanage what our trial judges say when they're supposed to be having a conversation with this defendant to ensure that they understand those three core ferrata principles so possible penalties in your view means what it means the penalty the worst case scenario that he faces at the time he makes this election to proceed pro se and that's precisely what he was informed of in this case what's your best case for that point that what that what lesser and more questions on forever i'll move on to the issue about the exhibit that mr mcelroy introduced used to cross examine detective powell and then it formed the centerpiece for his closing argument and that was his pitch to the jury wasn't about his guilt or innocence it was about allegedly the violation of his due process rights through the course of this investigation mr mcelroy urged the jury to acquit him because he claimed the investigators violated his due process rights and the centerpiece of that argument was that detective powell obtained a search warrant as a separate to obtain a search warrant based upon an affidavit that wasn't support probable cause so mr levine heightened highlights the fact that the government wouldn't have been prejudiced if in fact the court had allowed mr mcelroy to withdraw the exhibit but that's not the question the question here is whether or not judge hernandez abused his discretion when he declines to allow mr mcelroy to withdraw an exhibit after he used it extensively and neither mr mcelroy scoundrel nor the government i haven't been able to find any case in which any court anywhere has held that a judge abuses his discretion when he refuses to let someone withdrawn exhibit after they've attacking him saying well isn't it true you left this out you didn't tell the issuing magistrate about this and then in his closing argument he says this is the government out to get me they're violating my due process rights look at what they did with  so in terms of the attack on our lawyers comments in a robot all they were all directly responsive to what the defendant had opened the door to with his closing which is look he says there is no probable cause we said there the exhibit before or after he used the exhibit to cross examine the detective and then do the closing it was after year after he'd already cross examine him about it would you know already gotten the benefit of the use of the exhibits from the government's perspective ok then i can more than prepared to answer any other questions you have about the other issues that he raised and the other questions about my calling i don't believe we do  ladies and gentlemen you know we have to keep the time clock here because otherwise it will go on ad nauseum so they have i'm able lawyers sure they represented their clients well and we thank you the case just argued is submitted thank you