argument is united states of america versus wallace i'm also assuming that there were we received your request and that rather than close the court room you're submitting one issue it's been briefed and we won't refer to that in open court thank you morning your honor alexander silvered on behalf of defending the palin was a hard name to pronounce when preparing for this case i thought that it would be a good way to address the recusal motion by going at over actually the time line because this case involves three different court actions in front of judge moore way and four different appeals but of course before i do that i have to address the waiver issue which the government has raised  position is the only one waiver issue right that's got a real cases one has a waiver one doesn't so assuming we got to get to the next issue my question about the timeliness of the disqualification motion when do you believe would have been kindly time timely spots to file the disqualification motion because some of these are years old yes you are so the way i guess i'll go through the timeline because that's what you're addressing and then impartial and remember this is coming from my client who is watching all of these events and has reached a point where he believed that it was the judge was not impartial any longer and directed that we file these motions and so where this case begins a lot also seems to coincide with that your client lost a number of legal challenges at that point and so which can't be the basis for just because i rule against  that can't be the basis that i'm impartial that's correct the actual legal rulings can't be the basis but the comments made and the position taken by the court over those times can be the basis for  no your honor but there were multiple judicial proceedings which included for example where this case all began with the supervised release violation and it was just rd violation where the court and that began in may of two thousand and seventeen and that's where the defendant was originally sentenced revoked insense of seventeen months that case came before this court and the court reversed that decision and sent it back for  cent unsing prior to that having happened in july of two thousand and seven teens or two months after the one month after the sentencing in the o s c but two months after that began there were new fraud charges brought then in december th two thousand and seventeen there was this issue with the oa see where he had already been sentenced to seventeen months but there was this issue with the coins and the stamps that was unreasonably what to do with that and so he'd already been revoked he'd already been sentenced but the court would not give up possession of the coins and stamps and we were debating in arguing for five months w very contested hearings what to do with that and our position was the court no longer had jurisdiction over those coins and stamps and should return them pursuant to a rule forty one motion instead the court decided that it was going to create an intervenor action and later interplay interplay direction excuse me and turn the coins over to the government and create a civil action we vehemently protested that course of action this was because there were certain people that claimed it was their property and not the defendant's right there was one individual who came forward a retired that who claimed that some of the coins in stamps belonged to him he no one made any claim that mr had stolen those coins or had come into then knowing they had been stolen this other person who made a claim was somebody that the defendant had taken gold coins from was selling on consignment so they weren't adversaries that person just said well these  coins are really mine i want them back and we agreed with that so there was only one person who came in saying some of these i think belong to me from a burglary that occurred it is house what's your case this is it's legally in permissible for the trial judge to say i want this resolved interplay her and that's how we get rid of this progress throughout so we had actually filed a motion claiming that the proper course of action was either a rule forty one motion for return of property which is the standard way we deal with these issues or let the matter go to state court where this other individual could make a claim against the person we had when the judge said no i'm going to do this in action and basically created the situation where that occurred our position was how you know when the court comes into possession of an item through its probation department what right does the court have to turn seized evidence to over to the government to this day i don't know what right the court how is their position that the court should just return any evidence that seized on a case to the defendant regardless of the fact that the defendant has and or has been convicted of crimes involving  and there are people that are making claims i you know i'm reading the headline in the newspaper you know judge gives baxi status and to defendant that was stolen and a burglary or something your honor that would be a rule forty one dollars action which we thought was proper in this and the judgment she applied where she made choices based on the procedures available depending motions information being brought to the court as to go forward but how does that show impartiality and bias against your client  in everything you've everything i've heard for the last nearly seven minutes is really just we disagree with this judge did not she was biased against my client right you know i will in answering the question of how this was a tool to think we're not here to debate the right or wrong of the interplay direction what we are talking about is the supreme court law in that the constitutional law that says that when a court gets to mashed in the litigation of of a defendant then there is this appearance of impartiality having been lost of the fairness having been lost but how is in mashed defined because it seems inevitable in this circumstance where this district judge was assigned three supervised release revocation proceedings and a couple of different criminal matters that she's going to be in mashed in this defendant's proceedings because she's presiding over all of them that's correct your honor but what we have here is is a series of events we have the letter to the court that and the way she phrased it to the court of what she was arguing about to the court we thought that letter would be kind of like a twenty eight jail letter a one page here's a case here that exactly what she was going to say and ran  by both all the counsel involved and no one objected to it right your honor i mean it's not like she sent it secretly you know that's correct your honor and we did i mean it was an ex parte it wasn't any of those things and then there's you know th attorney's not a potted plant if the attorney thought there was a problem the turn issue to set that right your honor and i was that attorney and i didn't say that but what i did do was say that i took no position which is not the way it was expressed to this  which was true when you took the position you did not voice an objection where you're suggesting is that she said something misleading now if she had said the parties agree with what i'm saying that would be different but it was accurate no one had objected the parties took the position no when it objected to her filing the letter but to say that we didn't have an objection to the substance we took no position very different and what we're talking about again is not the right or wrong of the let's talk about the three aspects of this judge agreed so there's no problem there she didn't misrepresent anything you don't quibble with that not on the st part the next two issues involved footnotes two and three which had absolutely nothing to do with your client they were concerned she had about the her ability  to allow leniency in supervised release for cation proceedings and allow this intermittent confinement which had nothing to do with with your client so i don't know how that can show any bias towards your client again you are  all i think footnote two is a problem because she was actually asking the court to reconsider something where the court kind of indicated that maybe the court was the report was completely wrong about having imposed interment confinement at all so there was a suggestion there cases because it made sense that's how they assign cases it wasn't like you're sort of assuming that when defendants keep coming back that is judges may think to yourself oh this is great i really want to see that person again but you know we we don't but we have to decide cases and your client just kept picking up cases and that and if that makes someone in mash because we have to decide a lot of cases involving the same person that keeps getting in trouble wherever we're in mesh on every case i' interplay their action what happened at the sentencing in the fraud case all combined to we believe show that the court under the constitution was not acting impartially well i can only comment that by listening to an oral argument you certainly know how to object object when you want to object and when you take no position i'm going to take that as you took no position but i'll give you a minute for a bottle even though we've taken you over thank you good morning good morning mate well court but if you came from that that the students might be interested that but if you came from hawaii right that is that right campbell cases over nine different states so a lot of times people come from is our weather is not quite as good right not quite as especially this week when you put it back to ten cents i p s that time so you go ahead and start and state your name and your parents thank you thank you runner assistant  attorney marion purcell for the united states i think it's worth pointing out that at the point that judge mall way was handling the bulk of the matters here she'd been on the bench as a district judge from the twenty years  she had seen even in the mere four years that i've been in the district what she's seen more difficult defendants than this one and she's dealt with more difficult issues than this this was pretty routine i think for judge molly and it was nothing  especially what's the word insightful there is nothing incited her in this case there was nothing about this case that would have been exceptional or different or unusual as i understand my adversaries arguments there are a lot of ways to break up what his arguments are with respect recusal the way i've broken them up  argues that judge moore way didn't want to release property to him without determining ownership of that property story has to the st question i asked him as well what would have been a timely disqualification motion that's almost impossible for me to answer your honor here because i don't think that there you could ever with any basis i'm sorry you could have sat with him because he couldn't answer it either i don't think there's ever been a basis for recusal here so for me there is no point at not doesn't pinpoint a particular moment it would have to be before it's a practical matter too late and there's certainly cases that talk about bringing a motion delaying bring emotion purpose in order to gain an advantage i'm not i'm not going to suggest that happened here i take my adversaries word for that his client at some point we became frustrated and at that point losing if you're losing because the judge is considering outside emperor mation or the judge is showing indications of being so frustrated with the person and is so annoyed with them and all of that why couldn't someone bring a motion at that point that that if the judge had become in temperament and just did not appear to be following the law and had just you know if you say one more thing defendant you know i've had it with you and you're going to see you're going to you're really not going to like what i'm going to do so clearly if that happened at some point you know someone would have  they they could bring that up to the court couldn't they of course your honor and they're certainly to bring the motion the the supreme court said in life that opinions formed by the judge on the basis of facts introduced or events occurring in either the present were prior proceedings do not constitute a basis for but bias or partiality motion unless they display a deep seated favoritism or tag unism that would make fair judgment impossible so that's the standard for the situ so what we're talking about here is extra judicial versus material that occurs during the course of the proceedings and you could say things in the course of the proceedings that show that you just you probably had it with the person and that you really didn't you didn't like them and that they were getting on your last nerve and you just and you know that attorney would not you know an attorney is not acting out of turn in bringing those things to the court's attention if that if that's occurring you know of course not you know not so you know i don't know it seems like it seems like sometimes we can waste our time on things saying you can't bring the motion but you can't bring the motion but this is why you lose yes you are i'm not saying that he couldn't bring the motion i'm saying that he that the motion was properly denied and i'm saying that the motion was properly denied because in this situation where there was no extradition information considered the the only basis for such a motion under supreme court law is deep seated antagonism that would make fair judgment impossible and there's no evidence of that here whatsoever in any way shape or form what seems like you are maybe trying to sweep something senator and appeal waiver on a different case where you i'm sure i didn't follow there's more than one case correct and so it where he waived his right to appeal on one and but then your are you claiming that that would include he can't bring a motion to recuse no your honor ok you know maybe i misunderstood you know revocation case my position has nothing to do with whether you could bring the motion it has to do with whether the court properly denied that my shot you were claiming that the waiver of the right heel in a plea agreement case covers a motion to  recuse that was filed after the plea agreement was signed i thought you were claiming that i don't believe i was and i'm not going to court in some way well that's significant because that was a question i have as well was how narrowly could we resolve this because i understood your briefing to argue that it was a threshold issue and it's a suggesting it was jurisdictional that we had to resolve the waiver issue but your if i understand your answer to judge collins question you're saying that's not argument i do believe that with respect to the fraud case the right to bring this appeal was waived was given up that doesn't result of the issue with respect to the revocation case the conduct that added up to would you agree that we could just not address the waiver issue as a threshold matter because we've got to get to this refusal issue at least one of the cases and they say it's the same in both cases i would agree with your honor i would beg you not to publish an opinion that implies that the appeal was not waived but that doesn't mean that you can't just bypass the issue and go go on to the other issue because i agree the recusal issue does have to be have to be resolved in this appeal in this consolidated appeal so with that perhaps i should go back to his arguments for recusal with respect to the inner pleader action judge well way is it is a careful judge and what she had in front of her was an allegation that some of this property was stolen i mean ask believe that if the appellant here had wanted to address that issue he would have appealed that issue the inner pleader action went forward and the issues were resolved and by judge molloy the property was dispersed in accordance with the results of that action and as far as i know no appeal was brought that would be the appropriate place to make the argument that inner pleader argument and  r action was an inappropriate resolution of those issues clearly though in terms of what how judge mall we saw it in what her motivations were she understood that some portion of this property was allegedly stolen and as i understand it some of it actually was not just allegedly actually was stolen she was concerned that sometimes stolen goods come with other stolen goods and has nothing to do with whether mr shuman kora was involved in the theft or had any knowledge of them being stolen there were stolen goods in those in that property so she wanted to make sure that there was no one else out there who was also an innocent victim who was unaware that these  goods were in the possession of the of the court and she struggled to figure out the best way to resolve that and she came up with an in an admirable approach to it because the result of that in a pleader action was to make sure that everyone got hurt including mr schmidt with cora with respect to the resolution of those issues or to agree a district judge ordering a u s attorney to file a pleading this is somewhat unique  she didn't do that though you are she did not do that she was very careful not to do that she believed it was the best resolution and she repeatedly asked and asked and she made it absolutely clear that she was asking and not ordering trying to answer your question as quickly as i can i want to remind the court that we made a nd motion for refusal that was an oral motion when the we sentencing at the o s c occurred and the court gave the twelve months said that that was a course of action we subsequently withdrew because it became moot not because it didn't have any merit what happened was the civil action kept going and i would i was appointed for the civil action and we settled it and when we settled it to the oh there was no point in furthering the appeal in that settlement there was never an agreement that any of the items and been stolen that settlement was done to settle the issue  very small number of coins were given to this veteran he accepted it we moved on and we got most of the coins all the rest of the coins back that was to everybody settlement but there was never an agreement that any of those coins or stamps had been stolen no one else came forward and when the court initially said i'm worried about other people there was no evidence that there were other people there was just one person who had come forward and said my house was burglarized i think i had done a five some of these and in fact in the civil action not one piece of paper proved that he owned any of those coins or stamps we settled the case which is why we withdrew the interplay her appeal all right thank you thank you dear on this matter