federal rule of criminal procedure eleven c one says that the court must not participate he's played a gay sheet and there you know three main reasons why the main case in this area for sand and the court wants to avoid coersion on the part of the district court judge promote fairness and eliminate the appearance of a judge advocating for a particular disposition and so in this case there's a discussion between the judge and the prosecutor now the background of that discussion is that it's an intended arraignment so that offended has come into court he's with his attorney the prosecutor is there judges as up front and the defendant has made a motion to have counsel replaced and have new counsel and this is already the second lawyer so there was an initial lawyer with  defendant is asking the court for another lawyer the prosecutor and the judge are discussing this matter now the judge is in a little bit of a difficult spot here because he's trying to balance two very important issues judicial efficiency judicial me being response with government resources balancing out against the rights of the defendant have an attorney who he can communicate with and do have a fair process for him so the judge is trying to trying to balance those things and it's in this context where this conversation takes place and the judge this refers to speaking to the prosecutor he says and this is a charge of bank robbery the idea is to  him he's going to tell them everything they did together so it's an open and shut case is the conversation going on between the prosecutor and the defendant is so in over here he's going to trial me the defendant he's not he's not going to break that pattern  he's has a review of the criminal history and he's suggesting that based on of the defendant's pattern and history of they can cases to trial that's what he's going to do in this case you know counsel i don't mean to interrupt you but i mean this question given what i find we have so look at the time frame on and what i'd like you to do that think we're all aware of all the really intemperat and i don't think it does because this is a cumulative effect so so he goes on to say some additional things which clearly you're aware of  the conversation really should be more of that i say that all the humility and understand the judge well knows more about this than i ever will but but the conversation probably should have been about you want to attorney and or do you want to represent yourself but even after this conversation with the prosecutor the court then turns to mr rankin this is again on the first day and says i'll advise you that everything i've said in the past fifteen minutes you should take into account i meant what i said i'm not going to repeat it is what he's saying to him he says that to him so he's saying to him i'm not going to go over this again you know and  him what i'm saying to you is important now this is a guy who's walking into a federal courtroom with thirty foot ceilings giant room judges sitting up here at people robbed an hour early the judge federal judges are not in the habit of repeating themselves in general  everybody knows it's a it's a big deal and that in that what he's he means what he says but here he is saying it under those circumstances he's bolting and he's highlighting he's amplifying to get life in prison it goes to trial right so so so so to later argue that that had no effect because he didn't he didn't give in cave acquiesce for three months i don't think is reasonable because it's not like he's filed that away somewhere and he's just that it's not like there was ever any kind of cheering instruction by the court to say ok now last week we got off the rails but i want you to understand this is your decision this is a decision that you can make this is a decision that you need to discuss with your lawyer you need to come up with it that there's a there's a typical rule eleven type analysis is plea voluntary but but what happens here in this first hearing is inescapable the judge in in in front of the defense defendant and his lawyer says you request evidence you know let me twenty five year matt he says just like this other guy did who the judge threw out or he got life so to come back later and say well because he didn't give in on that day he held up for three months is not i think reasonable under the circumstances and you also have to consider the circumstances with which mr rankin's presented on that day he has significant health problems that the record goes into that a little bit but there's no real escape in the fact that he does have significant health policy has significant mental health problems including some of which your stem from being sexually assaulted as a child he's indicated that he can't communicate has not communicate with his lawyer whether that's of his doing or someone else is he has not had communication with his lawyer he wants a new lawyer he has a sixty seven i q and then the judge comes in and and and has this conversation and it's not it's not that i thought that i've been in front of judge oil for twenty twenty years and i don't think i mean a good thing that i don't think that's debatable that i think that the judge is actually seeing this and is trying to help this guy you know in a quick fashion say this is what's best for your list you know but that's exactly what was going on in the sand you case the the santa case seem to focus more on the benefits of pleading guilty versus here the judge is focusing more on the detriments of pleading not guilty and then bradley says regardless of the judge's objectivity it is the defendant's at the second hearing he sort of takes a modified approach i'm not sure whether i'm going to plead guilty or not you know at the third hearing he comes back and he's that includes plead guilty so  these statements under the circumstances the number of them they're not a single brief or more it's not a you know a single statement from or it's not they're not made after they're made before and they have that so that when he comes to that second hearing he is remembering and taking into account all the things that have been said to him before that when he comes into the third hearing and he's he's he knows when he signs a legal team that the judge has said it's an open and shut case it's an easy case you know they've they've got they've found they found you i mean they had had pictures no but where they were in mass but they found you five minutes away and eight miles away and and in that that he knows the judge just said yeah meaning in my mind that's all i need to know you're guilty mr brashear says when it comes time to talk about the victims from a victim impact he says there were no witnesses here today he's talking about that it was but he says i do have a photograph i want to present the  in a who's that who has polio and so now this is a bank robbery so that it's only put a picture that was handed up throughout the whole sentence so the and this is  money of a layout of the bank a map of the town to show where the you know the only picture he ends up in the only thing that he says with regard to this it group highlights this one particular person who is clearly  in a wheelchair and is clearly a victim and the these agreements with and so so so even though he didn't advocate for the application of the guideline provision related to  things and to do that was a violation of that dream and in this second circuit it says that where the government commentary reasonably appears to seek to influence the senate in court in a matter incompatible with the that a particular factor is appropriate the parties may breach that agreement when they attempt to subvert that stipulation through action in the ad so these that's the point here is that the introduction of that evidence through  through the picture and through the argument by the attorney attempts to circumvent that that agreement and i see that problem is almost up so we have to answer the question but so much thank behalf of the united states asking that you affirm that defendant's conviction and sentence and i want to begin by saying i'm not here to defend what the court said what the court said was not appropriate it was an expression of his frustration it shouldn't have happened but that doesn't make it a reversible error there are certain things that are very compelling about this case that show that it did not these statements did not affect the defendant it didn't really affect things isn't there right now which i mean i'm from virginia so i guess you know this judge would be off the bench marks the change i guess in the federal system a lot harder to get people can we just sit here and say not a big deal or say it didn't affect the outcome doesn't the integrity of the system count for something if i could i think i have multiple i mean i understand you're not countenancing the behavior but what i'm saying is about us how can we sit here and act as if this is a routine case in which the court may have made a few remarks that the court should not have made in an ideal situation expressing frustration this court told the guy he was guilty he said he was a pharmacological black hole i mean he he is loaded on to this person in a way that to me is just shocking and suggests that there was no justice or could be no justice in that courtroom so how do we then irrespective of your arguments on the effect are a couple of reasons why we believe that the conviction should be up first the defendant did plead guilty and he did so three months and twenty days after these statements were made and during that hearing there were no inappropriate remarks the defendant was under oath he represented that he was doing this of his own free will he shared that he was now satisfied with the relationship he had with counsel and the change in the relationship this defendant had with counsel i think is one of the most profound things in this case because from the beginning this defendant was unwilling to work within the system he was unwilling and not interested in following the process he absolutely refused to speak with his second court appointed attorney a first the court appointed attorney even arranged a video conference on the defendant did not acknowledge that he was on the video but that changes and that changes between december i'm sorry between late january and mid february there was a hearing on yet another motion to have the attorney removed on january twenty seventh that was denied undersigned counsel is pleased to report that open communication with the defendant has drastically improved in the weeks since the last court appearance as a result of this renewed dialogue undersigned counsel has reestablished a meaningful relationship with the defendant under regarding potential stipulations that would significantly streamline the defendant's trial if necessary what we have here is a defendant who is now engaging in his case he's engaging with his attorney and that's a significant change he's actually received and just scratched the opportunities he has gone over the evidence he is receiving advice from somebody familiar in the law who is advocating for him and also important is the fact that even in february nineteenth when this motion when this motion to continue trial is filed they're still exploring both options they're exploring plea and they're also exploring trial stipulations and that's something that you see looking back even farther because in early february twenty third seen the defendant files and he files to prostate motions the first of which was to represent himself because he was dissatisfied with counsel and the other one was he wanted appointment of an expert to help prepare himself for a trial so what we know from this record is yes there were statements on december fifth that should not have occurred but we have a defendant here at the end of that first hearing he says i'm not interested in pleading i'm going to trial and i don't want this attorney we come back and i would point out that december fifth hearing was never intended to be an arraignment hearing it was scheduled to be a motions hearing on his prose they filing that he did not want this attorney so they come back on december eighteenth and that was set up to be an arraignment hearing and at that time at the beginning of that hearing the defendant is still saying i don't know what i want to do i haven't decided i haven't talked with my attorney about this i still don't want that attorney and i don't want to talk with him about this he is not a defendant to be pushed around he's standing up for himself and i appreciate that a defendant shouldn't have to do that but what sanny end of ia teach is that you look at the particular facts and circumstances of each case this is the defendant who was confident in his position and he remain committed to going to trial at least through his filing of the motion to represent himself in february and then when this meaningful relationship finally develops with counsel they are still exploring their options i would also point out that this plea agreement did contain favorable stipulations he did receive benefits from the plea agreement there wasn't an enhancement sought for restrain a victim he cabined the potential loss we agreed  recommend acceptance of responsibility even though whether he timely communicated his desires is questionable but we agreed we're willing to give that up we're willing to allow him to accept his responsibility this is a have first we attached a photocopy of the photograph that was handed the original photo to our pre the original photo was actually introduced into evidence and i was unable to  get a better quality copy i don't know where the statements about being in a wheelchair are made i'm not aware that this individual was in a wheelchair and the photograph that i have does not depict him in a wheelchair but that photograph depicts it's an image from the bank surveillance system and the reason that defense the reason the government counsel provided that is because it shows those terror it shows the up it shows the office and then there's a female teller and then g the teller who has polio and they're cowering behind a desk in fright and that's why that was offered and it was part of the defend it was part of government counsel's broader argument that this defendant was dangerous and he was willing to terrorize and frighten people he done it before he continued to do it he did an armed robbery of a financial leave it was financial times and in that  it shows him in another bank tower and there cowering behind a desk and that is also consistent with government counsel's explanation of what it shows that it shows them cowering in fear and i also think this goes to the government didn't agree that polio was a forbidden work the government agreed that enhancement for vulnerable victim was not appropriate and a vulnerable victim and hanson applies when a defendant target somebody because of disability or other condition in the notion is that somebody who's going to exploit another's person another person's particular weaknesses is culpable than somebody else here we didn't say he knew about this polio and he exploited it we agreed that that wasn't the case so but  we didn't agree that the characteristics and experiences of the victims were off limits here we didn't seek to increase the offense level based upon targeting of a teller because of polio we didn't criticize the plea agreement or expressed doubt about the propriety of that's that particular statement we didn't suggest that he targeted that teller because of polio in fact whenever there's the reference to a polio government council he appreciated that there had been a vulnerable but the fact that he is vulnerable is not the only component of the stipulation to do a vulnerable victim and has meant you have to exploit the defendant has to know about it and exploit it and i don't think that we presented any argument or suggestion that he was more culpable because he exploited his y based on what the lawyer is saying in open court but where is the evidence that the incredible thing that was clearly on the record dissipated where's the evidence that  i don't think you would forget that but i do again i think you need to consider all the circumstances and the character of this defendant he wasn't one to get pushed around modified he's one that normally  i don't believe it does and again i am not suggesting that the statements are appropriate but when you look at the statements and the context of those statements it is different from other uses that this court has considered this wasn't an advice but when you look at some of the other cases that have been presented to this court you know bradley stand braxton what they would say in some of those cases what the court would say for example is will stand your client better a global resolution makes an awful lot of sense you're only hurting yourself if you go to trial it would be better to get this wrapped up in one situation because if you present two separate criminal cases your sentence  will be less favorable i mean there were actual very specific statements that the judge was making in the and other cases the judges making very specific statements to the defendant saying you will have a better outcome if you go to trial i think you should go to trial in bradley the defend the court was saddened that they didn't take the plea agreement and in these cases also you have a very close temporal relationship and bradley it's the second morning of trial and the third week of trial was a lengthy trial when these comments were made in sandhya the statement was made five days later there was a plea agreement and it was set for real that in the next month wilson was a longer certainly strong language in other cases no one is going to let you testify because you're an armed robber that's your career these three guys your allies are going to line up to get rule thirty five to get out of jail and they're going to testify against your and you're going to be hung out for whatever it is one hundred year sentence there are statements and then that goes on in that particular case that if you go to trial you're going to be gone forever  what is your problem don't you realize how serious this is why are you pleading i mean those are very those are situations where the core is specifically offering its opinion that pleading guilty will get you a more favorable outcome explicitly saying as much and again i'm not defending the court statements but we do you think that the conviction is sound and we ask that you  say anything about foley i do think that presents an issue the same issue whether there's a wheelchair or not the picture that's been in the custody of the government is it's not clear but it's clear in conjunction with the statement that he has identified a person who is vulnerable and he's does it in the context of describing victim and then in terms of the open communication and well you negotiate in and in the relationship improving i and and and we know you're guilty and so then one of the things that you discussed just a moment ago was the idea that no suggestion of a better outcome if he pleads or goes to trial and i do think that's what this whole case ball comes down to is there a suggestion of one of the things it comes down to  you're going to lose and when you lose you're going to get life just like this other guy and that is the combined with the position of the court the force ma worse if you it's going to be a lot worse on you if you if you don't accept this plea and you know and and i am different in the court to some extent because i understand the difficulty of dealing with that issue of a person who wants  another lawyer and then another lawyer i have been in that situation and think many people at a trial level have been in that situation on a regular basis i understand that it's difficult to balance those those competing interests but i feel like that the substance of that discussion maybe should have been around the relationship between the lawyer and not to step into the lawyer shoes in the say this is in your best interest into this plea of guilty i think when he and the judge does that regardless of intent which is nothing but