we have three appeals that are scheduled for argument this morning versus united states of america michael anderson so they miss cope with us here for henderson this greenwood is here for  good morning in may it please the court my name is emily copeland i represent the appellant brian anderson in this case today i'd like to focus on what i think are my two strongest and best issues and that is the interference by the district court and to the right to testify or not to testify about my client mr anderson as well as the denial of defendants request to charge number eleven which goes to the can c d s a way the byzantine and unusual federal scheme underlying this entire prosecution immediately after the defense case i stood up i was also a trial counsel and told the district court that i had rested the case this colloquy then ensued mr anderson you've heard your counsel announce that you have no more evidence to present in this case do you understand that you have an absolute right to testify if you wish to testify the defendant replies yes sir well is it your independent decision not to testify in this case mr anderson says matsch talk to my lawyer the court says yes sir we step outside please well yes ma'am there's a pause i come back i tell the court that i think it's fair to say that mr anderson isn't certain whether he wishes to testify the district court says he's got to be certain it's four o'clock we're going to do it don't i'm not aware of a constitutional right about attorney client relationship it's either didn't interfere with his right to testify he testified or did it enter or did it render you ineffective as counsel which one of which prong are you operating on your honor i believe that there is actually a rd option that interfered with the attorney client relationship and giving bad advice he discusses this and footnote a vanda walker talks about it lee talks about it and watch what do you suggest so i'm trying to understand practically take says that a good client has the right the defendant to decide whether or not to testify correct and there's a real problem if the attorneys if the attorney doesn't go over that with them if there's silence on the attorney's part  client never knows this rot real problem on a two thousand two hundred and fifty five it sounds like one it was a good thing the judge asked the question because it sounded like maybe you hadn't even talked about that with your client you are that is not correct i had represented mr anderson since before the indictment was returned and for ten months we had discussed this his desire was to go to trial on his desire was never to testify the jury and charges were how did the judge just simply could reconfirming that masking the question how did that interfere with your relationship with your client your honor as vanda walker lee and wants discuss the fact of even an inquiry about the right to testify suggests a certain insufficiency of the defense in the context of this case i had just lost an evidentiary ruling in the defense case and my client was very angry about that and as much as you tell your client that part of being an attorney is losing objections and giving in the litigation trope that you're flying the plane to get shot up and you're still go land it trial the fact that the judge had had gotten angry with me about an evidentiary issue that i pressed but ok so there was a new development was it not a good thing a prudent thing for you to have one last know there's the one victim and he says you don't have to get into all you don't have to go through waiver and all that but the other cases i read them say you're not required a judge is not required to go through this drill i don't see any authority on our part that says it's reversible if a was that there was no duty to correct for instance a pro se litigants misunderstanding the right to testify in the court goes on to say in cases where the defendant has an attorney a district courts colloquy with the defendant would be inappropriate because it would intrude on the legally sacred attorney client relationship and the league court goes on to say that's it page but i'm just a practical i'm practical person so the judge doesn't say anything here at all and it turns out your client didn't want to testify and you didn't have that one last conversation with him you've had them before but you had the bad evidentially rule and he wants to testify we never know and wouldn't we have three months down the road be facing the twenty to fifty five when he says you know i really wanted to testify and she didn't ask me at the last minute y talk to my client of the judge doesn't know you took any steps at all the judge also knows that my client sitting there and i'm saying that i'm resting the defense that my client doesn't want to testify and he doesn't see mr anderson signaling for help or pulling on my jacket to cross that this isn't the plane air standard you never objected you never alerted the judge to the fact you know this is a problem judge could you could you tell him that it's you know not that you're suggesting to him he testify and i'm assuming must district judges and this is routine most district judges always right before make sure the defendant knows his ride and i'm assuming practicing in savannah and you knew that that was judge moore's routine and knowing that's what he always does did and having this concern in this case about nd i worked for a judge he was very practical and he told me never to precipitate the command and especially with judges and while i understand that judge more often has this colloquy i did not know that we would have this colloquy for certain until we were in the middle of it rule is to allow a judge to fix the error how do you put that toothpaste back in the tube after the judge tells your client he can testify or it or he gives him this right and the client is genuinely uncertain wants to consult with me because there was a consultation and the client makes kind of a what kenny cook talks about isn't i mean you know but you're saying that you're saying that because the judge asked this last minute get your client this last minute chances because he asked then you and he talk and he decided testify and i gather you disagree with that decision your honor he has the right to do this but all of the cases especially can cook and i get that that's out of circuit precedent and it isn't bottom to this  anything that he testifies let's get on to the evidence best i can say the government had overwhelming evidence that all these transactions he described were totally made up nothing twenty four million nothing there i don't see any evidence in the record you know better than i do that suggests anything to suggest these transactions really occurred when he testifies he provides the only basis for the jury to think maybe they did and it sounds like the jury had some folks ready to acquit kind of quickly so maybe he did ok on that what harm was suffered by the fact that your client testified your honor then there was evidence in the record independent of his testimony that supported our theory of defense number one there were twenty million fifty two thousand and six tax returns that showed cost of goods sold that wire was no other cost of goods sold anywhere on other tax returns which supported a defense that these had been purchased and resold trap number two dollars you had testimony from other shrimpers notably that the law had changed and that their submissions to the customs and bureau protection unit that handled this had gone up dramatically from forty three thousand dollars to several one million there was also the fact i say you had some evidence to your son he hurt himself with this testimony your honor he did you can only breed the government's brief and determined that there are six pages of or so devoted to the effect of his testimony there's also the brown case in the margarita garcia case the talk about how to defend its testimony can really move the mark that this could lead a jury to convict simply based on a disbelief that his testimony the other issue that i'd like to touch twenty to fifty five motion because i am not at liberty to disclose confidential communications i when a client files an ineffective assistance petition as you know they can't use it as both a sword and shield i could then come forward and and make a record of exactly the really shouldn't be appealing on this ground we should wait for him to follow twenty dollars to fifty five dollars your honor i'm not saying that i'm saying that this ground is presented are so itself that there are three cases that have presented no standard to review this ground that part of a twenty dollars to fifty five dollars a five procedurally defaulted this claimed that would also and you were to my client's detriment so even if he chooses to raise this is a twenty to fifty five plan which i don't think you can because he testified i felt it was incumbent upon me to raise it at he has a right to make the decision of whether or not to testify and in this case that's what the court did the court did it not in the ways that are warned about in t and penny cook and so forth he did not put a thumb on the scale when he asked the question he simply was making a record which there is nothing inappropriate about it there were opportunities for the fence counsel to raise an objection and to make sure that there was a clarifying statement from the court that he was not intending to suggest anything one way or another that were in the amati awkward objection your honor i object to work you know normally something the government's lawyer does what you're objecting to the word objection they can say sidebar your honor and then they can approach the bench they can explain what their concern is and then when the judge asked the question or whatever they can clarify it there was another moment too the judge gave the parties an opportunity or the defense attorney and anderson an opportunity go outside and speak at that point ms copeland certainly could have talked to recline and said listen you know i don't think it was really appropriate for the judge to ask that question you and i have had this conversation a number of times over the past ten months so then you know and you know and then the defendant is faced with a position where he is caught in the middle between a judge and his lawyer that's even more awkward present and i don't know that that's true and i think one of the things we need to remember is in the context of a trial there are a lot of decisions that the defense attorney gets to make a lot of decisions about objections to been decisions about motions to make decisions about questions  defendants but this is one particular right it's a fundamental right rock st is arkansas the supreme court said this is the decision that the defendant gets to make and there's nothing wrong with the court clarifying on the record that the  that i need in order to take this case to the jury and that when that i mean that when constitute an interference with the attorney client relationship so that could certainly happen in some cases however that was not the circumstance the facts of this record there was there was no indication that this judge was suggesting one way or the other whether or not the defendant should or shouldn't testify simply said i want to make sure you understand this is your decision you get to make the president he didn't say change his mind when the judge asked him a question he said mass speak to my lawyer and the judge said sure you can speak to your lawyer and his lawyer asked could we step outside and they did step outside and they had an is very common in trials where the court resolves a number of different things and then takes up i mean evidence is reopened on a regular basis and trials phase based on various different reasons and this is no different i think what's important and one clarification i want to make is that in anderson's reply brief you know it's indicated that when they came back in to say that there was still an uncertainty about whether or not andersen wanted to testify they said that he needed more time and in reality that's not what the record said there was no request for more time that is another option that could have been requested in that moment is we need more time to talk about it and that wasn't asked for instead it you aware that this is your personal right after two days of trial where all the decisions got to be made by the defense attorney we have to remember the context defendants sit and don't have the options to instruct their attorney on exactly how this case is going to go forward so at the conclusion of that as things are wrapping up the court is simply making sure that the defendant understands that this is personal right it's really no different than when a defendant and  defense attorney decide that they're going to waive the jury trial and because sometimes that happens and they offer a bench trial the defendant was probably involved in those communications but nevertheless when that announcement is made the judge takes the step of verifying that this is the choice of the defendant because that's his personal right there are certain rights that the defendant has that are personal to him that it fence attorney cannot wave on his behalf and the court there was an issue of whether or not the defendant was going to testify this is a us versus joelson th circuit in one thousand nine hundred and three and in that case the defendant kept saying i want to testify to testify but the defense attorney was indicating that he wasn't going to testify and the court actually in that particular case the court wound up not making an inquiry and the th circuit said it was ok but during that exchange with defense counsel and with the defendant the court actually made comments like you need to listen to your attorney's advice and so forth and even that wasn't considered until it was troubling the  circuit found it troubling but did not find that that was error in this situation there's a six circuit case weber in from two thousand where the court actually went so far as to explain that if the defendant took the stand chose to testify and was convicted that the court could consider his testimony and the fact that it was disbelieved in deciding whether or not to apply a sentencing enhanced men and in that case that wasn't considered crossing the line in interfering with the right to testify so i think that in this case very innocuous i just want to make sure that you understand history and are certain that this is your personal right it's a fundamental right and i'm just confirming that you've made this decision and so he could have said yes i've made this decision no question but as has been pointed out things change during a trial and that decision may have been made at one copeland pointed out there was an objection that she had just lost and so he may have decided i want to i want to change my position on that and but at least want to talk to my lawyer about it and so they went out in the hall and they spoke it and he still wasn't sure you know and so they came back again and the court understandably said well we need to know one way or the other it's four o'clock and the date still has time left in it and there isn't anything improper about that had advised mr anderson i'm advising you not to testify or not to get on the witness stand and testify for a number of reasons one reason would be that it would interfere with your ability to raise a sufficien evidence argument on appeal and he said that based on the questions that the court asked me to reject your advice and testify because my other and making this decision just because there's a disagreement between the attorney and the client that's not interference with that relationship now i'll also point out that although ms copeland has pointed out the brown case in u s versus which is a two thousand and two published case from this circuit it stated that the government cannot rely solely on a defendant's testimony and the jury's disbelief of that testimony to prove its case and so and it's important to note that the government was not relying solely on the defendant's testimony in fact the defendant's testimony really wasn't that bad i mean it just didn't com would be an interference with the attorney client relationship no your honor the attorney and the client were able to have conversations about this there was no interference with their relationship the fact that the defendant this is either says i accept advice before i'm rejecting you and now after as a result of the questions of the judge your honor the question the judge was simply this is your choice and then he exercises his right now there are lots of decisions and lots of things that happened in the trial between whatever conversations he and his lawyer had about whether or not he was going to testify and things change and this defendant is has every right to change his mind without it being considered some sort of violation of the chinee client relation i would also like to point out because i anticipate in rebuttal that anderson is going to bring up  copeland is going to bring up this supplemental jury instruction i would point out that number one i think the judge is in the best position to weigh the relevance of that jury instruction and i think in this particular case all of the information that was contained in that particular inch proposed instruction was a listed through witness testimony in fact the very st witness shawn which which which rich testified specifically about the issue that has been raised that was of some level of concern or justified this good faith exception which are good faith defense which was that the shrimper can claim the expenses related to catching the shrimp through the c d s so ok just as the shrimp processor can claim the expenses related to processing those very same sram that's essentially what the issue was in shawn which rich confirmed that that was possible that's in the transcript at page eighty four of the trial transcript and and but here's the thing all this jury instructions said was this is what shrimpers can claim this is what shrimp processors can claim but anderson was not he was a shrimper in the government didn't challenge what he could claim as a shrimp or he was not a shrimp processor so whether or not shrimp processors can claim the shrimp they buy is wrong material is immaterial he was a broker of shrimp and this jury instruction did nothing to inform the jury of what brokers of shrimp somebody who middles deals somebody who is just a middleman from the seller to the grocery store from the processor to the grocery stores can do and so and the challenge is really in the best position to evaluate that and in this case judge the court evaluated it found that it was unnecessary said that this information would be a list of it from witnesses it was a list it from witnesses and it wasn't relevant at the very best it was marginally relevant at worst it was highly it would have been highly confusing to give an instruction about shrimpers and shrimp processors when anderson wasn't a shrimp processor and it was under this this is what the government contends is a farce claim that he was buying and reselling shrimp in mass amounts one hundred thousand pounds of shrimp every two weeks that justify these claims and we have to remember the claims themselves included handwritten notes about over five million dollars of manufacturing facility expenses and equipment expenses that just were completely fictitious and that was the government's position and we feel that the court did not abuse its discretion to properly instructed jury or leave that particular instruction out which was irrelevant thank you  you it would have been a mighty awkward objection to try to tell the judge he couldn't tell my client that i'm not sure contemporaneous objection awkward or not aren't you expected to make an objection if you or and again i get back to understanding the judge is probably going to do this that you drill for most districts that you could say ahead of time in a sidebar judge i'd rather you not have asked that course this is going to alarm the judge greatly because now we may have a situation where the defendant has not   the issue the issue is if there's a problem you bring it up with the judge when it can be corrected right then and you're right the fact the judge matter me bother me exactly zero that's just part of being a lawyer but if i went to the sidebar you even you said the judge would really put out a spidey senses on this if i told the judge is not going to testify i don't ask my client about that i think that that would have actually made the judge double down on asking my client about this particular decision yourself has said it's the we are we're talking about this kind of invisible interference of the right to counsel which i don't find in the constitution it's ineffective as since of counsel so it's whether or not this question would have rendered you ineffective and we keep forgetting this ripe it recognizes the right for the client the defendant to decide antique says two ways you can mess up on that if the client has told you the lawyer i want to testify and you say no i'm not letting you or as what could happen more likely you forget it's a busy trial you don't want him to testify so you don't even bring it up you don't tell the client it's his right and take it says if the lawyer doesn't tell the client and it turns out la classic gee i wish i'd known i would testify that rights been violated are the client's rights here premier and how does it hurt anything for a judge simply to say end of the trial i've got to ask you this it's up to you yes or no how does a neutral question like that render you ineffective the judge is by this question and in the heat of trial and having lost an objection which the client could import more significance to than anyone else does the judge asked him this it and there's no way  were saying it's a fast moving thing a trial so you we don't know maybe you had a conversation with him two days ago the day before that morning do you want to test whatever but things have happened you're sitting at the table nobody seeing you whispering to them at that very last minute the client has the right to know that he has the right to testify and hack in you ensure that happens unless there is something even the ark myself i doesn't require the judge to do that because i can ensure that judge it on me it is on me and as i said this is i think a much better ineffective assistance claim than it ever is an oral argument claim there's so much i would like to tell you but it contemporaneous objection couldn't give the gist i think things have gone bad maybe you want to testify it's a very neutral question you go down the hall i'm assuming you say whatever you can ask will think you shouldn't testify he has whatever his reasons are and you may be repeating a conversation or you have the coll and as it always is whether the judge is energex it or not he makes a decision whether or not to reject your advice correct trials are rarely reasonable and calm they're not reasonable and calm for attorneys this is a stressful situation i was standing outside talking to my client for a brief period of time the government suggests that i could have asked for a sidebar on this but then my client would have thought i was talking about of behind his back the government notes that i didn't ask for any more time i was getting there but the judge tells me it's four o'clock it's go time you've got to make a decision right now and you know what and again i know it's not easy but if you really felt your client needed more time what you have to say whether that judge as man it's four o'clock or not what you have to say judge we simply have to have more time and you'll get a few more minutes just for that but when the judge says you know it's four o'clock we're going to do it that's what my client starts interjecting let's do this let's testify and that's how it went down your hon