yes sorry mr lopez maggy conviction and the related supervised release revocation should be reversed and remanded to a new judge because the district court's finding of guilt was based on two fatal violations of mr lopez maggy constitutional rights one was his right to a conflict free counsel under the sixth amendment when his attorney effectively testified against him and the judge used those statements against mr lopez my going to draw adverse inferences as to his guilt and his credibility and the second violation was the use of mr lopez mag iowans post miranda silence against him by the prosecutor both during questioning of mr lopez maggie young and during his closing argument as well as the judge's reliance on that post miranda to reject mr lopez maggie defense and mention the confrontation clause and i actually thought that was your possibly best argument so i'm interested in why you left it out just now well you know i see it actually as in some way sort of a subset of the conflict free council because the result of what happened when the attorney testified against his own client was that there was no opportunity for patience so i don't i don't mean to suggest that it was we are as i can tell the only thing that the lawyers statements in the transcript added to what was said it what the defendant testified to was actually a mistake that is the judge said that the or never said that the lawyer what the lawyer said you're right he never said i told him the exact sentence that he was facing and i just talked about procedures he said i talk about the process i talk about accepting responsibility trial sentencing and then  talk and he didn't say i told him the likely sentence or even the possible sentence but the problem is the judge then takes that statement by the attorney and says to the attorney on the record very clearly you have testified in this matter and what i take from that what i'm saying is it is a little weird which is that it would be harmless had the judge not misconstrued it may be that may be true the judge read into it the most negative inference that one could take because if he instead of getting into complicated problems about whether it was just money or conflicts or anything else the problem is he did say it well the problem is the judge took that and then the attorney said then the attorney was placed in the position of essentially becoming a witness against his own client whether he meant well really it was one of her client because at that point he was protesting and saying that's not what happened here but well he both protested and he said you've made me a witness this is an ethical conflict because then he is put in the position of basically having to provide testimony about the context of what happened the confrontation clause problem because had there been the opportunity to cross examine him he would have said clearly that it's not what i said what i think and that that feeds into what judge friedman was saying that that that's the fundamental problem because that that misunderstanding was never explored or undermined or explained because there was no opportunity mr lopez maggie on to cross examine his own attorney and i don't really see how it's a conflict because what the lawyer does is make clear that he's aligned with his client i mean he's trying to get out of the situation and help the client seems to me the real problem is how the judge used what he understood the testimony to be and not the lawyer having like mixed alliances or some of the lawyer clearly is trying to help the client is that at that point in the i think he's left trying to attack himself which then leads to the confrontation problem because his only recourse at that point is to try to undermine his own credibility or explain the testimony that the judge believe that which still as as far as i can tell the only it seemed pretty clear to me that the judge and the government were specifically relying on the post miranda silence because they were saying that even if he had a right to silence any any  that the defendant raised originally because that matter it doesn't and i can explain why for a couple of reasons for one reason is the question that was asked of my client was  didn't you tell them immediately i believe you used the word immediately and that can implicate and create a prima rand silence exactly so my position first of all is that defense counsel never raised the issue of post miranda silence  and to invite that kind of error as i set forth in my brief you have to emphasize the silence draw favorable inferences from it that is not what defense counsel was doing defense counsel repeatedly said throughout the trial  but that the answer involved explaining that he hadn't brought up the story until he was with his counsel right so at that point hasn't the defense essentially explained that that's what happened i mean i am troubled by how they it like why didn't you ever talk about this before seems very troubling under dog well and yet it does seem like the defense had already said i didn't bring it up until i was with my counsel but i think that you have to look at the context the context in which that was brought was not to emphasize the timing of the story it was to emphasize the consistency of mr lopez mag story so the point was to show that he had told the same story and i would also do i think that's definitely right so i guess i'm wondering if there's a in the cases that talked about how the prosecution can cross examine about some it's already been brought up i mean is there anything like this where it's like you can tell why they did it but they did it anyway and so the matter is why they did it well i did read a case and i apologize that the name escapes me at the moment of the client the attorney did make a statement that client did not testify because of the attorney's advice and that was not considered to be an invited error and i would inference quite the contrary right so the fact that the government then asked for an adverse inference and as far as i could tell got an adverse inference seems to be to be squarely in the middle of a problem i agree your honor i agree and i think you know to the extent that the court has concerns about the questioning i would direct you to for example united states versus lopez a two thousand and seven opinion from this court in which the government had claimed  invited error and the court said in a footnote that the questioning on direct examination was really about premer and a silence and the government went much further and had a sweeping both pre and post miranda argument that lumped those things together and under those circumstances because the government's argument and the inferences it was asking the court or the jury at that point to draw were broad that it wasn't invited error and so i think this case is similar to that a a short brief comment that isn't about what inferences to draw from the silence does not invite a wholesale attack on mr lopez maggy own for exercising his miranda rights and that's exactly what both the government and the court did and they did it very plainly on the record the prosecutor said threats of death supersede your right to remain silent and the judge said in the real world a person who is facing an a k forty seven wouldn't worry about their right to remain silent rather peculiar thing is there was no objection was there well which was sort of amazing yes ma'am so during the questioning by the prosecutor there was not there was defense counsel during rebuttal closing argument did read from the transcript and pointed out that mr lopez maggy on had been mirandized at that point and was exercising his miranda rights and also during the colloquy i didn't have  the inference or the argument for the inference well i thought i suppose he did not specifically say i object to you drawing this inference but he was certainly trying to make the point that this that mr lopez had exercised his constitutional rights and that that exercise should not be used against him yes but that's sort of a factual dispute about why did he do this because he was exercising his his miranda rights versus their question friends that that that's not a good enough reason if you're actually in fear for your life which suggests he really wasn't in fear for his life so that's a factual dispute but it's not a legal dispute about whether they were entitled to draw draw this it for us i guess i would my position is still that the the t opic would be preserved given the nature in which it was raised that defense counsel continually brought up this idea of miranda and also considering that it is a bench trial where presumably a judge would be problem i mean it's hard for me to see how this isn't a plane air issue because yes the defense counsel says this was after the miranda warnings or whatever but he never says you can't make this inference he never mentions doyle he never says please don't think about it this way because really it was just exercising his right never says anything that even a request he did he invokes miranda yet the presence of miranda but even if the court were to view this as a plain air issue and that the objection was not preserved i would still say that this  qualifies as a reversible plain error because the judge made so clear that his rejection of the dressed offense and the guilty finding was based on his use of this post miranda silence to draw this adverse  inference so it's clear that mr lopez this is air under doyle for sure it's clear that mr lopez a substantial rights were affected because you know that silence was used against him and i think it would certainly require reversal  given the nature of the district judges statements and that's why i would also ask for a new judge on remand you do see i have about three minutes left so what was it exhibit number one very briefly very brief so exhibit number one was the transcript of the interview you know i thought that was exhibit number two exhibit number two was the factual stipulation and then exhibit number three was the stipulation to introduce what did he admit at exhibit one exhibit one so ok so exhibit one is the transcript and exhibit one was my client a transcription both in spanish in english english yes yes so as translated of the story of his dressed offense that he told prior to the bench trial but the willem in out of the blue statement these are one twenty two to one twenty three reitman's are only  english right they are there only in english they were not the transcript of flex that they were not translated for mr lopez maggy and so he had no idea that those statements existed so i have two questions  stipulations one is the case law seems to talk about voluntary not fallen cherry unknowing for the most part which suggests something different and doesn't suggest she has to actually know what's in this tribulation as opposed to voluntarily agreed so is that correct or are you arguing that he could only stipulate to it if he knew what was in it why i think he has to at least understand the voluntariness at least goes to him understanding what the consequences of the stipulation are you have to you mate maybe you don't know every single parent usually means you're not coerced but well but i think it has to be informed i mean there is case law that talks about the stipulation has to be informed the person has to understand the nature of what they're stipulating to and so in this case particularly with the interview transcript there's no evidence that as to those statements of the attorney mr lopez my going on understood he couldn't have understood what he was stipulating to because the attorney said on the record i messed up and i don't realize that no one is right don't some of the cases talk about knowing and voluntary they do it's i mean i have seen both languages you know i i recognize that generally it's voluntary but case law does talk about knowing and informed but i think that he understood in spanish in that transcript you can not say that he did not know what he was doing or can you are after me run the warning you cannot challenge it or can you the just the transcript itself yes that story yes so he what my client said was stipulated to i get is that your point like what i'm challenging as to the stipulation yes ok so the problem is that i agree with you that for if it had just been my client's interview and those statements my argument would be very weak but the problem is that there was a portion of that transcript where the attorney was speaking and then that portion was used against my client and my client would have had no idea that that was in there one because it wasn't translated for him and two because his own attorney didn't fully realize the  put it in the transcript even if then if what the lawyer exhibit is there it is is there a you have to scratch all of that because he himself said it because my client what did he say at the exhibit one what is exhibit one exhibit one is this is the transcript of what of the of a free talk interview that my client did with the governments prior to the bench trial to lawyers not just what the lawyer said and i thought my the only way to go right and i'm just not sure it wasn't translated and is there some general idea that what lawyers say isn't really evidence correct and so there was no reason for him to assume that it was going to be used in this way but the district court did use that and really just go to the track the stipulation being bad it goes to the fact that it should have been relied on i said yeah correct correct and maybe it all goes back to the confrontation issue where at at that point there was just this inability to deal with this issue there were things there were many things that the district court could have done and it didn't do them ok you're trying to  the defendant testified he didn't tell the agents in the field anything about his to rest of hands he specifically mentioned in his testimony two reasons why he didn't tell them the agent anything one was because he was told he had the right to was when i told my attorney when i first met him which was at the pulmonary hearing ok ok those were the facts the court used to evaluate the credibility of the defendant's testimony but not really because the court says that the attorney admitted that you didn't say it until after he told you about the sentence what actually i thought i'm reading that i read the transcript different from that basically the way i see what happened was the court was under the impression that the defendant hit the defense counsel talked about the s and the defense can said no that's not what happened i didn't tell you that the transcript doesn't say that it definitely doesn't earlier that he was he said earlier he was corrected all right but he always right so so that may deal with the question of whether he was relying on what the attorney said but it doesn't deal with the question of whether he relied on the post miranda silence which the government definitely did in its closing argument and which it appeared to me the judge did as far as the main issue in the credibility finding so i don't understand so except for your essentially a right to silence no no person who really did this would remain silent rather than saying this no matter what ok right which obviously involves the point at which he said he was the judge also accepted this idea that he never said it until he meets his lawyer now you're commenting on the preamble post miranda silence i don't know how i mean yes there's a pretty part that maybe is appropriate to comment on but it wasn't only what they were i mean it they seemed much more impressed with the fact that he continued to remain silent you know after the scary guy wasn't there anymore and and specifically sa can contrast to his right to remain silent when the fact that he was fearful and said any person what would what testify even though you have a right marine sergeant was specifically part to the silence the what they relied result had they are good at that way but they didn't and neither did the judge so if if there's a confrontation clause violation because these statements by the attorney were used against his client whether rightly or wrongly or by misunderstanding or not how is this not a situation where it ended up that there was testimony that wasn't cross examined used against the client and you haven't even argue that it was harmless it wasn't i would say there was nothing used against the client beyond what the client testified to but that's not true because the judge clearly says that the lawyer said that the client didn't bring this up until after he was told what a sentence could be and then the defense counsel clarifies and then the judge as i read the transcript the judge credits that by saying i understand that where is that  please let me find it real quickly  it's page eighty four it looks like how i mean i have no idea what he meant by i understand that i mean that lawyer is trying to explain that he didn't really talk about the sentence but the judge had already said he thought that and then i don't i mean he said so many different things how do we know what it there because you might know him in mexico so they're both of them are not done with seem to be making much of the premier and just silence they're making a great deal out of the tell the agent hey this guy has been holding me basically kidnapping me a gun point for five days we he never saw but i could never escape that it's what is compelling that wasn't it immediately when he saw basically your whole argument is kind of prejudice on that issue yes i mean you're agreeing that there was a mission both by the by the government and by the judge i am a green that the argument second because of the way this evidence came in the government didn't attempt to distinguish between pre and post or into silence which is what it should have done and what would normally be done you know you can talk about  the site you know that when i do not find that story to be believable he had previously committed the same offense against the united states and in the face of what i find to be reasonable he does not tell the story to anyone until he is actually the throes of the evaluating the credibility and mike means to you but apparently wasn't to these people and as i was saying that was a result of they didn't make an attempt to distinguish between pre and post marina silent because the defendant was the one that introduced  into silence and it appears that the prosecutor thought once the defendant produced it introduced it it was fair to comment on so i'd like to go back to your answer about the confrontation cla it seems like so we first have the judge using the lawyer statements as if they are evidence against his client now it seems like you're saying somehow that confrontation violation gets a race because maybe later the judge  understood what does that mean i mean can you race a confrontation clause violation with something later that maybe goes the other way well again i'm not sure you're talking convocations there was no testimony here by the defense counsel but the judge thought it was i mean this is what's so weird here what the judge credited because the transcript didn't stipulate into evidence by the defense counsel the judge but like in a deposition when a deposition is admitted into evidence do we assume that the things the lawyers say are evidence well usually that's you say well the judge then understood what the judge what the lawyer said and corrected himself that's more evidence i mean once again he's relying on the on the lawyer as evidence as to what happened earlier ok even if even if he's doing what you say you said the defendant testified that the first time he told anybody was when he told us attorney at the initial appearance that was a pain is testimony but the judge seems very persuaded by the idea that it's not even that bad it's even worse because he didn't do it until after he heard about his sentence well and i think the phrase it's one point that the judge uses if he's in the throes of the criminal process that's one version but there's another version where he says very explicitly it's not until i hear  ok and that's the first version and then the defense counsel attempts to clarify ok so now he's testifying again the square a fine for the record what what but then i'd say my question who cares if he clarified if you have a confrontation clause violation another witness could testify and have a little different version i don't think that takes care of the confrontation clause violation i don't understand how that gets out of that i guess what i'm saying is there is no the defense counsel wasn't testifying i mean one of the problems we're having the judge said he was testifying he specifically said that the judge used the term tester i don't think he was saying that he the pain it was under oath which is what testimony is but he uses it as significant evidence of whether this guy is credible what his own lawyer said about him i would argue he's using what the defendant's own testimony was about when that's how he was this i mean the only wary way he gets to this point is by talking about page twenty two of the state which is where the lawyer is talking and then it gets that gets cleared up and he doesn't he relies on just the first time he said it was when he was in the criminal justice to stow if you had argued that this is harmless because it later got corrected maybe we could talk about this but you didn't argue that in your brief we've got a confrontation clause claim which there is no harmlessness argument so it seems like we're under gonzales flora's is that the name of our you know beyond to be standard and i don't understand how anything is clear after the point where the judge says you didn't bring it up till the sentence nowhere is there a clear statement after that that we know for sure the judge doesn't think that anymore instead of when he finally does the verdict he says i've already said on the record my reasons for doubting this guy's credibility and that goes back to the original statement ok and i actually i would say in the government's brief the government argued it as a plainer issue and on page thirty of the government's brief the last paragraph of the argument i think that's the right argument is that the defendant can't show prejudice which is the same thing  i think you have like two pages i'm trying to find it on the confrontation clause and i don't think it has anything about harm with your coverage because starts on page thirty and all it is is the end is that's the defendant's claim that he was denied the right to confront evidence that he was responsible for fail tell me what was the result be if we thought either the confrontation clause auto oil was reversible error we reverse and then why is everything some isn't it hard to put aside i mean he seems to have been very persuaded by things that were improper and how is he going to put that aside even if we tell him he's supposed to it's a credibility determination is really already made  but again i would i would kind of put the judge in the situation came to when the church has a motion to suppress say the defendant testified say the judge finds the defendants are not credible that doesn't preclude the defense the judge from conducting the trial at that point well sometimes that's they're just not credible as to what happened in this event it doesn't necessarily mean they're never going to be credible again but this is the core credibility question of the whole case and if you look at the whole defendant's story it is an incredible story i mean well so then maybe  before a different judge i know without dialogue without this conversation i don't think the court needs to find the church very can't be fair in a retrial i think that would be totally inappropriate actually one last question with regard to plane air if  our problem when we look at the two pieces together with regard to prejudiced and where one is planner and the other is not there i know there is one case with the court that trying to remember the name so it is ok i will i had the same question in preparing for today so you don't have to meet all the problems of playing or if you're just using the air  cumulatively that's basically the question yeah there is i believe counsel for the government is correct that the most recent cumulative error cases preston i'm not certain either but i think that i think that that is correct and in terms of the plane or if the court is reviewing under joy l i would echo judge a person and saying that this is a case where we know what the judge relied on because the judge told us what he relied on and it was the post miranda silence and i think that satisfies the plain error standard  and so the government's idea that well there's a prima silence that could be commented on that's compelling the fact is that's not what was used and that's not what happened and as far as he could have reached a conclusion based on that maybe but he did but he didn't and this a case where we have a very clear record of what the persuasive and compelling evidence was for this judge and he said it was possible and to silence and i don't think that this court should ignore that in terms of the confrontation clause i would just point out as judge friedland said that the government has waived almost every aspect of that argument other than to say that it was somehow waived by us which it was which it was not in terms of the remains who and when how and when was it raised but you well i think that my client never waived his confrontation rights and the government's argument is that by stipulating to the admission of his testimony that he somehow waive just confrontation rights but that is not true right but did but in the discussion when the lawyer kept saying you know i didn't mean to testify what i said was an evidence and specifically raise a confrontation problem he didn't specifically say that no but he but he was getting at that point and certainly the client did not waive those confrontation rights simply by entering into the stipulation which is essentially what the government's argument is and think they're arguing that you didn't object i think the only thing they're arguing is that you would mission of the truth that's correct and if we disagree with that as a basis then i don't even i think you're giving them look at it i mean they're not even saying you didn't object a trial i think they've almost maybe they waive that i don't know how that works if you didn't object but they haven't pointed out i don't think we have to apply whatever yeah you're correct you're correct and then i just briefly to address the really into the new judge i do think this is one of those extraordinary circumstances that does require remain to a new judge simply because this is a judge this entire case hinged on my client's credibility and the judge made it clear time and time again that he didn't find him credible because of the post miranda silence because of the attorney's of the statement made and it's no  no slight to the district judge but i just think this is one of those cases because it's such a bizarre context that if you try this case by the way no ma'am i did not so could i ask the question this is such a weird case because this testimony this testimony from a lawyer gets used as evidence it's a bench trial so we know what the judge is thinking is there any like rule of law that is going to emerge from this or is it just a fact about on thing that we maybe have to fix in your view basically asking like is there something we should be publishing  if if you were to win is there something that you think is a principle that's emerging from this honestly your honor i think it's such a bizarre situation that it seems very fact specific to me i mean i feel like it's application of subtle law in bizarre context quite frankly so so i don't think it's making law i think it's just trying to apply it properly ok thank you both very much with a helpful argument and we will submit the case of united states versus lopez magill on recess thank you