the next case rodriguez versus united states good morning your honors may please the court my name is mouthing in one thousand since i read present cleopatra rodrigues i think the primary issue in this case is whether or not mr rodriguez was prejudiced by what happened in the  conviction that led to the scoring noblest motion and i think that answer is easy yes she was she have an attorney didn't seem to have any idea about what her citizenship status was and there's no indication that he made any attempt in his neck in his is no indication he had negotiations much less attempted in negotiations to hear that or attempt to withdraw want to say that i might concede a little hypothetical does nothing in the record because it never happened i mean there was no government you're saying that the government would have somehow the government knew everything here but somehow she would have been allowed to leave out all of all of the activity that happened prior to her arrest because this is all that was not question that was asked it was that it was the dates that were significant  you know whatever happened prior to be statements that she made in the naturalization application but we're looking at a woman who had an extremely sympathetic situation she had the relief that you were asking for essentially  could be a hearing to inquire into what might have happened or what would have happened had a different proposal been made by the defense yes that's in effect although i would add your honour's that that to continue to support her children and her family that's clear but that involved also staying out of jail or staying out of jail for as much as she could possibly that that's true and that's and that's why this was from what she could say without understanding that there might be deportation consequences if they ever play but had she what would be the proposal i'm trying to understand what the plea proposal is that would have been should have been put to the government that the government might have agreed to are you suggesting i think i can think of either because not a question of the offense she's already pleading guilty to strip down offense right yes so the only thing it could be has to do with the are you proposing that the defense should have tried to ask the government to accept a different kind of allocution or that maybe what of clever defense lawyer would have done is just have her allocute that she did certain things without specifying when she did them and that might have slipped by without the government paying it no judge i don't think anything would should have slipped by and we specifically yes explicitly said in the brief that's one of the possibilities that there need not have been a time period specified though i mean it should have been asked explicitly look here's the thing she doesn't want to be denaturalized so she's perfectly prepared to admit that she rented the apartment and did whatever she did with the tax returns but she'll just say she did it during the time period of the conspiracy without specifying at the date that is one of the possibilities i the i can't know what the government would have said well i'm just trying to what i think is at issue here is the ineffectiveness of defense counsel so the question is what would be the strategy that the that a proper  defense would have followed and then the next question is going to be and with the government have left that off or not and if i were the defense lawyer i would like to think knowing that she was a naturalized citizen and knowing the specifics of the naturalization situation i would like to think that that's exactly what i would have tried to have done would have been asked to in effect obscure the date in which she did it ordered to save her citizenship as part of a plea that she is guilty of this this or this conduct serious conduct and that's that's were it seems a stretch to me i'm i'm all except the word obscure judge but i don't think it has that just in history meaning i think that it would have i i don't see the necessity in the plea for being all that specific plea would have been acceptable would have would have covered the bases strict case but in leave the court placed a great deal of emphasis on the fact that defendants the thing about lee is that that was an option a possibility of going to trial and what i was hoping to get to was the idea that if the plea could not have been negotiated then she might very well have gone to trial because otherwise she was dead in the water and lead makes very clear that a defendant who wants to take the foolish risk of going to trial is still better off than a guaranteed deportation so i would i would think that that might also play into it but is there anything in  the record to suggest that she would have gone to trial because you're on it there isn't because at that point there was no reason for those considerations to enter anybody's mind the supreme court says that it can be ineffective  that there is prejudice if either the defendant would have gone to trial or the defendant could have secured a better plea there are alternatives that's right and you're not suggesting that there is any basis here for thinking that she would have gone to trial in the face of the evidence in the case or that she cared so much about deportation consequences that she would have marched into the valley of death and hope for jury nullification you are saying she could have gotten a better deal i'm saying that that would be the first that the first push i happened to have a client right now in a completely different case you didn't fact marchant that some people do that the plot hopefully that would not have been a proposal that she would plead guilty without specifying the time frame her advantage in the naturalization proceedings then would be compared to now that the government could not use her own admission against her but the government would still have whatever evidence the prosecutors had in this case and they would have no longer of beyond a reasonable doubt standard to prove that she had done these things in the relevant time period before her naturalization proceeding they would not be limited judge that's the secondary what i think is the secondary question which is the adverse consequences again if i were in her position i would much rather go into the next was asian without my own admission at least it makes it who knows what the government might do we'd all rather but but i think those are adverse consequences and  please the court my name is andrew beatty i mean system united states attorney in the southern district of new york i represent the governor in this appeal and represented the government in the petition in the district court below this does lead change the san standard some are it is not your honor and he was different from from what we had said in colfax kovacs already takes a already embraces a case by case examination that the supreme court demands inly and this is also different case from lee because it does not involve direct deportation as a direct result of a conviction and therefore is a is a different analysis in terms of the in terms of the remedy as well as the prejudice under under conveniently lie to the naturalization authorities about her having a prior record a proper prior committing these crimes your honor that's my understanding as well and there's defendant an adverse immigration consequence i mean that's why kovacs won because the government already had done that in that case but doesn't that stand as some evidence that the government is willing to negotiate  pleas that get what is needed in the criminal process but do not have adverse immigration consequences i can't speak to precisely what conversations happened in kovacs but in here though we all know what happened in kovacs because that's the premise of the decision is that the government had accepted a misprision of felony plea precisely because it like the defense attorney operated under the misapprehension that that would avoid immigration consequences when it was clear that the facts would have supported a substantive criminal count that would have led to mandatory deportation that's how we know that the factual situation there's no indication of that in the record or is that something that competent defense counsel should have raised there was no the do not rule is a sion proceedings were initiated to some good some years later a competent defense counsel have raised the question of whether the government would agree not to seek to denationalize her as part of this global plea past as an kovacs there's no reason for the defense counsel here to have raise that because ms rodriguez didn't tell her defense lawyer as far as the record indicates that she lied on her naturalization application the defense lawyer had figured that out from the fact that she was now pleading guilty to having committed a crime within a few years before her naturalization and why would it be on her to tell that to a defense lawyer i would think a lay person would be not aware of the significance of that as something to discuss and i'm sympathetic to the fence lawyer here i myself didn't know about much about the naturalization until the supreme court's decision a year or so ago brought that in that case from bosnia bro but that vividly home but still that may just mean that i might have been incompetent defense lawyer if i had been faced with this kind of case it's common ground here is it not that the ineffective defense lawyer would have understood the naturalisation consequences i thought the government conceded that yes ok taking a step back to look at the big picture but i'm just wondering is as a district judge i presided over any number of pleas in which the elocution seemed carefully crafted by the defense to admit the minimum necessary to have a valid guilty plea when the government plainly believed and would later say at sentencing that the defendant had done much more then the minimum amount that was in the elocution some wondering why we should think that the government would have said no by god ms rodriguez has to discretion taking a bigger bigger picture view of this in making an equitable determination of whether the extraordinary remedy of course is warranted judge press has intitled to to look at all of these facts including the fact that it's rodriguez says that she did tell her lawyer what her citizenship status was that she was a naturalized citizen i have no idea what the lawyer was doing at the time of plea when the judge asked if she was a citizen and she said yes the lawyer nothing nobody was discussing concert you know possible immigration consequences of what she was doing and and i put it to the lawyer i also want to underline that there's no question that very difficult task perhaps of convincing this court that there is a reasonable probability of a different plea but that's only because of the lawyers the fact that nothing is it the lawyer had had had tried to negotiate a better player something we might know what they had the government would have responded in the hearing to remain and we know the facts that are before us and then someone from the government  prosecutor on the case comes in and says i would never and then the question is the judge has to decide whether that's credible or alternatively i suppose it's possible the prosecutor on the case might say well i didn't care about the naturalization stuff and i would have allowed a plea where she just said yes i acknowledge that at various times i did transfer possess and use means of identification of another at some unspecified time within the timeframe of the indictment i did possess and use without lawful authority a means of identification of another person and that's all speculate it to that's what you would and that's the best i could do wanted us to have the conviction vacated correct yet and then have have have a new plea yes how does that unring the bell in terms of what's already been said in terms of the ability of her to so she goes in and she pleads that way but maybe it's even a truncated plea but the facts of the matter the fact of the matter is did she lie before the before the immigration authorities you're it's not clear that you would be able to do that in a separate immigration proceed correct i'm not sure in know that you would necessarily be able to get past the the proceeding certainly as as judge lynch pointed out earlier the government would still be in a position to offer its independent proof and there's not much that i can do about that but in terms of relying on admission and i note that the complaint that was followed in the de naturalization proceeding does indeed specifically rely on the plea and conviction so is that they might have to file a whole new complaint and it may be she's in her situation is such that a good attorney might well persuade the government that she is not the kind of person who needs to be sent out of the country we don't know any of this but but i think that the opportunity for mr rodriguez to try to achieve a favorable result is she's entitled to it under under this recognized law thank you thank you very much