morning my name is steven r j would i do represent charles burton i have reserved three minutes for rebuttal and please remember to keep your voice as we let your argument thank you this direct appeal arises from an amended judgment proceedings without any additional instructions for the district court was confronted with these with this case mr barton attempted to bring up additional matters directly related to the authority of that sitting court to hear his case the court determined that his request were beyond the scope of the authorization sent back by the six circuit that was around us every quarter the united states whether federal or state has the inherent authority and responsibility to determine its own authority to act the part of the court was this a remake or was this grant of permission to pursue a success given was either it was a pickle was it permitted to go forward johnson issue that's an issue that this district court should have determined was confronted i think was improper for the district court to ignore the issues of its authority to act i think was erroneous for the court to say this is beyond the scope of the authorization it came back to court of st when i came back i'm going to correct the sentence then i just record but at least possible it's a plausible reading of what they've said in their brief that they're no longer arguing on the basis of that at this i'm not sure because if i get into that in the broader context of the case yesterday i got a twenty eight j mailed the verdict instead of bring in mr burton to court to announce is very good required by the rule secondly the harm consistent with the purpose of the rule multiple instances council change number one he was held the standard of review in the st appeal to plane air because he was not given the opportunity at the st time to raise objections with a very came back motion for a new trial offer up  make an objection to it as soon as he received it i mean owner stand how this council changed its new council his new counter of lot of whether it's its you could have called him in i don't understand i think i can see why you know maybe it would have been would have drawn it to the tension of council more rigorously or did he did he did it wouldn't be raised and if i were if i walk through that's another reason to sin this back because the twenty two i'm not understanding the if i could talk about the prejudice because i do it here let's let's look at the ability what's the reason for having a defendant brought into court at the time of the verdict very well a verdict by right to a public trial not only impacts the defendant but the failure to protect the public interest and the operation of the courts but one thing if i come to your question can you understand exactly what happened procedurally short while they were in court the district judge the district judge made some general observations i think you call them a general he before i thought your brief said that while they were in court there are some general findings made there were general find these issued in writing but what happened at the in the ninety nine since ninety nine proceedings was he appears before the court the court says gee i would like to have some brief filed he said miss on judge said as i found you guilty of these offenses very correct so why isn't that enough because that's not the verdict the verdict was to two months later his counsel his chain but came out of the time doesn't matter because there's nothing because the judge very easily could have called you folks in and said i want to you know put the verdict on the record he could have but he did ok so it can't be the time the problem is that it wasn't in open court right now if that happens with the jury you know the jury's gone you know it's a problem but why is it a problem if the court the verdict came back what are general findings only i find you guilty a count this i find you go did you ask for specific findings the court rule says if you ask for specific findings before the verdict the court is obliged to give you specific you that's all he would have had to do in public as far as you're concerned to to meet the rule forty three dollars requirements yes but then mr brown i can see if the sentencing has to be if it's a jury verdict i can see where you would want that because you would want the jury to be there to see the effect maybe they could be poll right and i could see it in a sentencing where the person is right there getting the sentence and there's something about the way that the judge sees that the sentence affects you might cause the judge to moderator some i just it's just very hard for me to see what the underlying purposes other than mere formality to and mere formalities have to be followed but if they're not followed error has to be drawn to the attention of the judge that's why i'm looking at what harm it does and that's why i'm looking at the harm that it does in view of the fact that the judge wasn't told you need to do this at the relevant  time i am and what is the harm i'm still having trouble grasping what there's something i said on the bench for twenty four years and there's something about the personal interaction between the court and a defendant the brings the seriousness the nature to the defendant and the importance of the action to the public and when that is ignored that is a structural defect they cannot be cured and they cannot particularly be cured in this case because there remain back well then to follow up on what judge white said why isn't why isn't that formal moment there in the sentencing hearing that's open to the public to it's not because i think so much time had passed counsel had passed that the lawyer who was a trial wasn't even there with the sentencing somebody different but he wasn't required to send some immediately was now i mean he wasn't required to but announce the verdict immediately was that he was not of waited one card waited and sent the letter the day before he did this thing that you say is too late so i'm trying to see how that's a result of the non oral i think i think the context of case is important when you make this kind of decision  context of this case is that we are how many years later now correct if it's him from the beginning it's him far now you can't assume jurisdiction the district judge in two thousand and seventeen he has to address th issue that's still not answer point out that's still not answering the question about the structural erhard how do you define structural error my understanding of the concept is a pretty high bar to clear for example the denial of right to counsel in the case might be structural air verdict is a critical stage of the proceedings it will deliver the very it fails and denies that public proceeding denies the defendant the right to address the court there's rendering those facts that decision especially based on general findings it's a deprivation of due process is a deprivation the public's right to know what's going on the courts have said if the entire trial was closed i would be one thing but this is really quite another it's a very limited run or danger point it's quite a limited phase in the proceeding r calling this a structural error would really open up a wide range of things that happen a trial that it and that you're for raised on direct appeal might be resolved but at this stage of the proceeding it's awfully hard to call that a structural order unless unless it was wrong in the beginning it would carry through to this court it might my point about this whole thing is this that this structure the proceeding this is that it was wrong in the beginning it was wrong in two thousand and seventeen it was wrong in two thousand and seventeen the presiding judge in two thousand and seventeen should have heard the argument or transferred the matter to the th circuit to determine whether or not a successor petition would be proper or granted what he said was a motion to amend he has the authority to determine the responsibility to determine his own authority to act he didn't do it do you have any cases they deal with this situation in the context warning may please the court my name is look mclaurin and i'm here in the half of the united states mr burton's conviction and sentence in this case should be affirmed because his conviction is valid in this war properly exercised his discretion when imposing  below guidelines term of three hundred and sixty months imprisonment the much of mr burton's argument focuses on the claim that his convictions are invalid because the district court mailed is general findings out to him before it announced its verdict at the beginning of the about return a verdict doesn't identify what exactly counts as a return or verdict when you have a bench trial here what we do have is we have a proceeding in this case where everybody was present the court was on the bench defendant was present and he did announce the verdict that he had reached i think it's important understand what would happen in this case and lead to the contacts and there was some discussion in the context there was a bench trial here at the end of the bench trial defense counsel requested pursuant to rule twenty three  that the parties be able to file briefs and that the court then issue general findings and what rule twenty three dollars says that it contemplates a situation and says look when you have a bench trial sometimes parties are going to want the court issue general findings in the court can do that in writing that's specifically what rule twenty three dollars says those briefs were going to go to guilt not so yes there was or britain guilt innocence only now apparently what happened and we know this from the documents the court filed is that the parties later on said you know what we don't actually rule twenty three dollars what it then awkwardly did in that document is it also announced findings about guilt so i can see how one could construe that as a return a verdict that was mailed which doesn't seem to technically comply with rule forty three although at the end of the day the court also announced its verdict in open court at the beginning of the sentencing hearing which would certainly seem to satisfy the purposes of rule forty three dollars you agree that the word verdict includes non jury determination  guilt i mean traditionally verdict was something that the jury came down with i would agree that for purposes of rule forty three it has been understood that way that a bench trial a finder of fa determination of guilt or innocence is what is generally be considered the verdict for purposes of rule forty three the issue here though about this alleged rule forty three violation is one that the court really doesn't even need to get to in this case and there are several reasons for that the st is what we have knowledge that that issue is properly in front of this court mr burton waived that issue by never raising it in his prior  appeal this court has well established church prudence that when you have situations where you have multiple appeals where you're supposed to raise whatever you can in your st appeal and his initial appeal from his original conviction he had an opportunity to raise lots of claims did raise lots of claims but one claim he didn't raise was to say the rule forty three dollars was violated or an argument about ineffective assistance of appellate counsel i'm just asking if there are you that's a possible argument that was that ar yes it is in fact because where it this typically happens or drillers when you have somebody dependent appeals something about their case rate it goes up and either a conviction gets vacated or a sentence gets vacated the person gets remanded for either and at that point the original john is going to have been vacated and a new amended judgment is going to have been entered exactly the same kind of thing that happened in this case and then somebody goes up on appeal again in tries to raise issues that they could have been should have asserted in their prior appeal this court  consistently said no we're not going to allow you to do that you should have raised that issue in your initial me ask you this if we find that issue more challenging than the merits issue under plainer there's no  you could certainly decline to address whether the issue is waived if you find that the issue is ultimately meritless because he's not satisfied the player stan answers my question and while i'm at it i have a couple of other police technical questions all right do you argue you don't make that argument i just want to make sure what you're you know you're not making we're not saying a c e o is required because he's not actually appealed the judgment from the twenty five proceedings if he had appealed that judgment he would have needed to get a way to appeal the judgment from the twenty two to five proceedings so that the basically you're saying the issue isn't even though there are lots of issues that he has raised some of which are not really properly in front of this court all his arguments about the dish of course decisions regarding the handling of his twenty to thirty five motion and his request to amend his two thousand two hundred and fifty five motion none of those are properly before this court because those are matters that are subsumed within the judgment granting twenty to fifty five relief and if he had wanted to appeal that aspect of the proceedings he needed to appeal from that judgment he didn't he only appealed the amended criminal judgment entered in this case andrews cases are you believe inconsistent with what we talked about we can set that aside for long as far as i'm concerned what what what i want to ask now is the basis for the district court's decision as i understand it is that they should have attained a permission from us before get clear because you're opposing counsel is a little unclear and i was a little unclear as to exactly what the government's position is government's position is yes the district court was correct at the time that it made that decision to rely on the absence of authority from us to reach that issue but once it entered a new judgment that made it ok for us to reach that issue is that not all together but notwithstanding the hurdle problem with respect to the rule forty three issue and your answer is yes and you can explain i want to hear the answer is yes yes on appeal this court does not have a problem with that because we have in your judgment that was entered we have an appeal from that judgment this court can consider issues relating to that judgment that doesn't mean that the all the issues raised have been waived and we've talked about that already but this court can consider that we've got direct weight on direct appeal we've been up there having been previous asserted in the pri appeal the rule forty three argument original draft the original record deal yes so our position is that this report properly found that it didn't have jurisdiction considerable forty three the reason it didn't have jurisdiction was because court had only authorized the court to consider a sentencing claim related to johnson that's the only thing that mr burton asked the court to authorize it that issue or to consider and he couldn't he couldn't just amend the because this about rule forty three dollars you have to go to the six circuit and get authorization to do so he didn't do that he kept trying to bring the claim in there other mechanisms in the court kept saying no you need to get authorization because i can't consider it in till you get authorization and so our position is that the court's decision below not to address that argument was absolutely proper because that issue or didn't have authority to address that argument that if your court made the determination that he was eligible for a particular form of twenty t judgment that we're appealing from is and then are intervening in judgment but at the time that the judgment we're appealing from was made by the district court he didn't have jurisdiction to do it until he did it you know if i don't have jurisdiction to do something until i do it and that sounds a little strange that isn't exactly what's going on it's not exactly because i absolutely understand your puzzlement i read that it's a very puzzling situation but i think it's a puzzlement that arises because of the supreme court court's would in this court's decision in king which says that you know when you have a new judgment think it's entered following a twenty to fifty five proceeding that sort of resets everything because you have a new judgment and so the situation we had is he was trying to raise rule forty dollars claims before there was a new judgment at that phase when there was no new judgment he was a successor twenty two dollars devival and now that there is a new judgment and it's up on appeal he can raise all the normal claims he can raise to challenge a judgment on appeal including the fact that the conviction underlying the judgment is invalid and those claims are also going to be subject to the same procedural rules as usual default rules that any other claim would be subjective but that i think that's where we get in this awkward situation then not only don't you ever have to raise these things in the trial court but you're not even think the whole point is mr burton could raise this rule forty one should embrace this rule which we reported three argument way back at the initial phase in this case right at the time of the sentencing hearing you said whoa whoa whoa you mail me the verdict that was a problem the court could have you in the plane air yes and so i think the defendant had an opportunity to raise these claims at the right time in the his initial proceeding he couldn't raise have jurisdiction to consider this now that this report has a mentor entered a new judgment this court does have jurisdiction to consider issues really a judgment in and we're happy to address this this will forty three argument we maintain that this has the feel of  procedure exam unfortunately the case but if we get to the end and we get to rule forty three dollars if you how do you distinguish kennedy it seems pretty close in the fact our case and i can see a difference you know between a jury returning a verdict in front of  supreme court precedent which has said that these kind of errors are not structural errors in these two key supreme court decisions that the court should consider i see my time as it is about to lapse if i could at least many fish mentioning them the st one is rushing the spam which i apologize it is a fundamental right it is absolutely crucial and yet we still think it is subject to harmless error review it is not a structural error the court was very clear in that case in saying that and if you look at the  supreme court's opinion in rogers if you cite our brief from one thousand and seventy five there the supreme court also said look rule forty three errors can be harmless just rather you asked before about what's the definition of structurally or the supreme court said structural errors or those things that go to the basic the basic protections that are necessary to ensure that we actually have a reliable criminal trial and it is the rare case the supreme court has said when you're going to have a structural error because most errors can be and the harm is that it's not open to the public and so therefore we can have the same comic confidence in the verdict as we generously define where where it's announced in public presumably there's something in the air which if there is something that the judge is hesitant about the verdict would be reluctant to do in public that might more easily be done by just sending a letter we all know that sometimes it's easier to send a letter than the face they somebody why isn't that mean that seems to be to me to be the strongest argument why isn't that some kind of prejudice prejudice that's built into the purpose for the rule here for concerned about the public being aware of what's going on and having openness everything here was open to the public the general findings that the court filed or filed in the public record this wasn't a secret document that was mailed out only to the parties this was filed in the public record that is argument is that it's that it's available to the public it's that it's presented in public and this seems to be what the rule says on the court of the rules recognizing some interest in having it be in public in a public proceeding rather than in a written proceeding that's filed on the docket that's available to anyone who knows how to look for the rule recognizes that there's something to be protected there and he's articulating that that what it is is this extra added confidence that what you're doing is correct when you're willing to do it and state something in public as opposed to write a letter how do you respond i'm not sure i'm convinced by that understand the argument well the court did also state all of this stuff in public as well at the beginning of the sentence here we have that statement from the court we had that opportunity for the public for mr burton for everybody who was involved in this case to see the fact finder and now it's his verdict to see if he had any was expressing any doubt or concern about his verdict there was then consistent with the sentencing procedure identify what the penalty is harder argument if you did i think it would make our argument a little bit more difficult but again that the whole point here is these are the kinds of issues that you review difference although it's kind of a little different from the subtle difference puts an important difference this arc of his recognize that in united states versus williams this court held that a different court erred by conducting a sentencing hearing by video conference verdict the quote goes on to hold that the right to be present is scarcely less important d to the accused than the right of trial itself you find that a page for fifty five  the if i could hit that mark and just lost my place it's it's prejudicial not only the mr burton but i think the to the public that this occurred the manner in which  did is prejudicial to him that the his his efforts to find that again his efforts are consistently  his position i guess is consistently presented throughout the life of this case from the day this court a from the original conviction all the way through two thousand and eighteen from multiple stages you objected at what point  he thought it was later them and it was if after the case was if the case was affirmed on appeal it's united states versus crozier's the name of the original case in two i can give you the libby of the history two thousand mask and when the when this  forty three issue was presented to the district court it was presented it is so the whole idea of plainer in my view is does does the district court deserve to have this argument presented so the district court can have a clean to proceed if they had come in and sentencing in the way or said judge we received this from you i understand that it was addressed to our that we wanted some findings of that but the mean this verdict needs to we object to the verdict we get to the fact that you mailed it and then what if the court had then said something almost exactly like it said which is well i found you guilty of these things would he still be entitled to a new trial if it occurred back in the room so what if it occurred back in the original proceeding now i think we'd be talking about forty three if it if it occurred if that book heard after the verdict was the words that were uttered at sentencing were in the past tense i think they i think they were insufficient yes i think it's a very big difference that at that stage of the proceeding as opposed to the actual delivery of a very very different i'm sorry i don't understand your answer are you the fact that the verdict was sent in writing the air and would have been preserved for review on the is direct appeal of that conviction mr burton or perhaps not have been held to a plane or standard ok but that's a very different let's decide the merits then so it's preserved what happens what happens on appeal is that reversed because in structural ever or just the  chance to correct it what if the good judge was given a chance to correct it as he wasn't in this case at sentencing if he was given the chance any grab the chance and he said ok you've made this objection i'm going to listen to what you say and i'm now going to give the verdict in open court our being now in open court then the question is is there a violation anymore as a validation for a thre that point yes no i think all that i mean that's so that's and that question seems to me to say that the harm in doing that versus doing what the court did can can only be minuscule because it only has to do with the difference between i now find and i have found i mean it's like two words once in the past tense and once in the present tense that is enough to to do way with all the formality that the rule protects just hard to see why we're struggling with i understand your position i don't agree with it understand because i think the dynamic is very very different ok but i mean because very different for the public the confidence in the outcome and here we are one hundred and fifty five days later but i'm trippin in your example it's ok if they did that one hundred and fifty five days later as long as they use the right words difference is the context it's a very big contextual difference so i don't wholly agree that it's ok i guess i think the context on the environment everything is different in several circuits have found the forty three validation to be person here without this discussion