my name is daniel drake i'm an attorney from phoenix arizona i like the weather here and i represent julio morrow over to go harvard to go the issue before the court is whether the district court was correct in denying a twenty two five twenty two fifty five motion without benefit of hearing on grounds that the defendant was not denied the effective assistance of counsel that when his attorney was not present at the settlement conference the defendant has  oath indicating that he was not present at the hearing the court hasn't said anything yet in this case but i have hearing aids and i may have a little bit of difficulty picking you up so forgive me if we get to that point on who attended the settlement conference on his behalf well on anybody's behalf there were eight defendants seven others including mr howard for doogal and it looks like there were eight attorneys there as well ok what was what i'm representing you know the minute reflects that in turn he by the name of sean bruner was present on behalf of an attorney named matt mcguire mr mcguire is never content that he was at the hearing mr brewer filed the affidavit that said he only attended one proceeding in that case it was not a proceeding regarding a settlement conference but whether he could become counsel of record and he has no recollection whatsoever of attending a settlement conference that the records show that he was there the minute at three did it and the district court relied upon the human an entry because he thought it unlikely that the minute and free would be an heir unfortunately the minute entry was in the air it reflected that the proceeding had been recorded and it was not until two thousand  fourteen internet was entered amending the two thousand and six minute entry to point out that there was no recording that was made of the proceeding so we end up in the situation where whatever occurred in that room is something that there is no record of no written record no court reporter record but do it is that a clearly erroneous standard that we have to decide on whether or not the district court erred  with respect to the motion on it with respect to the decision that the district court made denying the motion that is to no avail with respect to whether there should have been an evidentiary hearing that incident busa discretion standard i thought facts but that the district court determined that's a clear is that that's not a clearly erroneous standard clearly erroneous in this particular case would not apply in my view for these reasons when you have at this stage of the proceeding conflicting affidavits then the ad is almost like a motion for summary judgment situation where you assume for the sake of the proceeding that the allegations if surprise double and if supported by facts made by the movement are true then he's entitle to a hearing only if the records in the court conclusively show that he is not entitle to a hearing that he is entitle to no relief do you bypass the hearing issues and because mr horror do go said and you're  might think it unlikely that the district the magistrate judge might have done certain things those are put to the side and you look at the allegations made by the movement and if they are adequate on their face then  lawyer turned it down yes what happened was that this case was indicted i believe in about two thousand and five and the proceedings that we're talking about now occurred sometime in late two thousand  is to say the settlement conference occurred in jan or december of two thousand and six shortly after the settlement conference the attorneys for julio verdugo are over to go with drew and we're print permitted to do so and that's available at the excerpt of record pages thirty one thereabouts that julio had a difficult time accepting but she was telling him that he had difficulty accepting the law on the application  that lot of the facts and she questioned his acceptance of the information he provided now those are all germane to whether he he had a chance to change his plea or whether he didn't what i would suggest to you is that if you look at the transcripts of the january thirty one status conference between judge the law skull and three or four attorneys at that point you will find a passage in which judge philosophy volunteers on the record that he has reached out to the assistant u s attorney who was in charge of the tucson office a fellow named dan can oust and ask mr canal s apparently in a voice message if you could get a different plea offer for the defendants he then went through and regaled for sergey oh the problems that he was going to be facing because he was twenty one and he thought this to know that he would never see his kids again never take them to a movie he'd never be engaged in a card game and when he was had served his twenty years which was what the preliminary offer was he'd still have thirty one years  sorry to interrupt you but i want to ask let's just assume his counsel was not present for that conference i mean you have to show prejudice correct there and that correct that there was no counsel present at the december six settlement conference assume that ok assume that don't you have to show prejudice i think i have i have all right because he had a here he had other counsel and he had a year between that settlement conference and the date of his first trial because there was a mistrial in this case and then there was another trial and he's saying that based on that settlement conference which occurred in january of  e remember that year but that whatever happened and despite his subsequent counsel that affected his ability to enter a plea agreement so that's your argument is that that's my argument and i have to overcome that hurdle i i don't doubt that a for a minute that's what the district court relied upon and i think a district court was wrong in that regard because if you look at the transcript of what took place on found that the counsel was there yes based on the docket entry based on the docket entry at the minute minute entry yes ok so so you're saying that was wrong  and so therefore he should get really i'm saying let's just assume he wasn't there again a lot of time transpired and he had other counsel in between that time period i just i don't charge if i can analogize the allen charge is something that is given to a jury to break a deadlock and to get the jury to make a decision these charges are not favored least in state court they're not and they're not often given in federal court if they can avoid it and what happened here is that the actions of the district judge or the magistrate judge as recounted by my  terrified him and made him do exactly what might have seem counter intuitive it's almost like when a car salesman is trying to sell you a car and he's working so hard to sell it to you that you're just but i mean if he had gone into the next week and had to make that decision i understand that but he had over a year so i just don't understand whatever happened and how traumatized he might have been by judgeable osco in the settlement conference i just don't least i'm not now and that was my main question for you because i think that's that's the argument you let off with here and so it seems like that's your main argument to give you an opportunity to address my my question regarding that i think you have so if you want to reserve any time and then allow for your co counsel thank you thank you mr  good morning runners i'm kathleen williamson here for sergio harrow and i'd like to try to reserve a minute but i think some of my ten minutes has been chewed up in this particular case the reason i'm here today is because my client got a life sentence to me that compelling issue but there's a lot of our that's built into this say that cumulatively shows that this should go back and there's the things that i listed for example first of all there's the problem with the sort of fight issue and whether or not he should have had an opportunity to have those agents reports which we briefed and then there's the amended issues an uncertified issues the sort of out issue for me is regarding the rule eleven problem with judge the lasco and i don't have the perfect trifect a that mr drake has my client did have an attorney present but you still have ninety minutes in the dark and some very serious allegations in the affidavits about what happened in that ninety minutes and have traumatic that was collectively for for these defendants but then the amended issues that i have that you want to lead with the double jeopardy claim well the double jeopardy claims been conceded and that's going back to a judge just seems like you'd want to acknowledge that here oh i definitely acknowledge that we're going to take it back and and i'd like to  you know ask the court to not go along with the language of the government has in their brief about limiting that simply to dismissing the conspiracy convictions and not letting the judge reconsider the sent as is required in hector and the progeny in the mayor case where the judge has to reconsider the sentence and the just and has discretion which counts to dismiss under three five five three so i would like to not limit that remain and there was another case a person involved in this same conspiracy was not that that practice was done was in this case that yes leonardo burgos had his attorney filed the they didn't object to it at trial which was ineffective for both mr ralls and m but then on at the ninth circuit mr rolls did file it and surprisingly mr allen would didn't file it so my client didn't benefit from the double jeopardy the very obvious double jeopardy problem in the indictment in the jury  convictions i don't know why mr own would didn't file that but the government in seeing that the exact same issues apply in the same indictment so forth has conceded that and that it should go back to a remit i just don't think it should be limited in the way the government has phrased it in there and i understand i wanted to give you the opportunity as i'm going to ask ms mccollum about that i think you are and i would also like to address that the government has asked the this court to dismiss the amended issues and i would ask the court to build those amended issues in as a first part of the first petition to expand that first petition in effect judge michael brown a hand was not really an attorney in the opening brief in this case because he was conflicted and when he discovered his conflict after the opening brief was filed that doesn't mean he wasn't conflicted the entire time so in  saying i'm the first attorney on this case and i'm from tucson and i know the situation for example with the previous counsel for mr julio verdugo and with the prosecutor at the time because it was it was just known in the area and i have a footnote in my brief my supplemental opening brief asking this court to consider me as an officer of the court and there's nothing in the record because nobody ever put anything on the record but my argument is that not only should mr julio  verdugo have known that his attorney had that prior had a conflict with that relationship but the defendant should have had information about that you know the dennis case that cited in our reply brief has a beautiful quote in it that says that  every one of these conspiracy cases carries with it quote an inevitable risk of wrongful actually of responsibility to one of the multiple defendants and in this case somehow this life sentence shifted from the youngest son of julio verdugo and i think the record has so many examples and i built an excerpt of the trial transcript as just a small fraction of all the facts in this case that are clear that julio verdugo was really the mastermind of all of this at the very back and of this case after the government caused a lot of delay because of the mistrial the judge blamed ralph allenwood for not filing a mitigation motion to continue a week before sentencing but the pre sentence reports for both julio and sergio switch like the first progress after for surgery i was a three sixteen recommended sentence which probably would have been appropriate in this case not life that's the top end of this he was a criminal history category one when he was arrested at twenty one years old and he's been in prison ever since he was twenty one years old and serving a life sentence in a case in which nobody was hurt no gun was ever seen in this case julio his attorney filed these motions and then david kern went along with those motions at the very back end of all of these proceedings and all of a sudden the actual flips to where a week before sentencing mr al will gets a new draft pre sent report recommending life and though the compound in fact that he waited so long to file the motion now the government you know asked him to continue and asking for some some mitigating evidence to be presented to the court there's also a lot of evidence in the trial record that julio was really abusive and controlling of sergio and and julio's other children were all sacrificed to the drug trade the entire family was in it and julio was on pretrial supervised release when this case was being investigated which leads me to wonder why sergio's phone was the only one that was wiretapped because possibly because his father at that time was pending a federal indictment he had a federal indictment already for these charges julio's father owns the trucking company he owns all the property now ralph ellenwood made these arguments in closing arguments before the court but the problem is and the government has responded to my motions about this that this was brought up at the ninth circuit the ineffective assistance of counsel was not brought up at the ninth circuit the same trial attorney did the appellate case he was ineffective in not bringing the obvious double jeopardy motion but he also wasn't going to say to the ninth circuit i was ineffect chief judge burry actually said in the record that the reason he wasn't given the continuance for mitigation purposes to get a psychological evaluation was because alan would brought it so late and the ninth circuit says the exact same thing both of those courts blamed ralph ellenwood for that so you know there's a this case he got a life sentence if he hadn't gotten a life sentence is wouldn't be so crucial but it's very disproportionate compared to all the other people that were actually controlling sergio he's a baby and i think in reading a closer to this case you can see when his father got arrested with that truckload of marijuana and all three he turns over the family business to the last of his children the last son the first son is already in mexico on a warrant for drug for a dry case everybody in the family's been trained by julio verdugo with all due respect to dan drake and his client that's what this case shows you when you read it and sergio got slammed at the end and i have to wonder how did a life sentence  and i have to wonder did mr kern have some limerence still involved with his feelings for mr julio's attorney did that it should there should be some evidentiary hearing this should be some question about that what happened in that ninety minutes at dark ninety minutes that traumatized sergio the january thirty first transcript with lorraine a heroin judge velasco he's telling lorraine you can hear that the parents are still controlling the search and whether or not even takes a plea agreement ending with that the same argument that mr drake let within that that your client was somehow this is such an odd and peculiar posture because normally we hear defendants come up here and say that oh they were forced into the pl agreement because of what happened maybe at a settlement conference when those settlement conferences were within the law which this one was there was no ruling came out later from this court saying that you know should do those anymore represented up until the time of his first trial and subsequent and that happened there's a good deal of amount of time that occurred between that someone conference and and the trial and i guess i'm just trying to figure out what was the prejudice well well the only thing i can think and what my client has expressed in the other client the other defendants have expressed is that they were so traumatized by that hearing and they just pushed them into what one brashly wouldn't expect to happen but it is like when you push something so hard it makes people wonder is the government's case so weak that the judge's on their side in trying to push us to take these plea offers  and the net dark ninety minutes is very problematic if we had a transcript of that ninety minutes that's a long time for a settlement conference like this but we do have a sort of a continuation of it in january thirty first in the hearing with lorraine judge judge for law school has an awful lot of information about this case that i have to wonder where did he get that how did he know about this jailhouse attorney who's not really helping the defendant says he says in the january thirty first hearing how does he accuse lorraine a h controlling sergio and whether or not i asked for the settlement conference if according to the minute entries it was requested by the attorneys and so i understand the defense attorneys it could be an invited error but whether or not it was on the record is a real problem and what exactly happened and i don't rest my entire concern about the life sentence on the rule eleven violation there should be i think there's a violation there under the case law just from the things that judge glasgow said whether or not this prejudice is the next problem obviously ok let me see m aggressions the descriptions are much more vivid and scary about what happened in the in that ninety minutes i mean a million upright a straight judge did put him on a higher bond or anything like that or no no no  i'm here from the district of arizona and i'm representing the government on this matter we've had a whole lot of factual issues brought up during this hearing but i think the most important thing here is that  twice what is the prejudice from having this settlement conference that was off the record and whether or not julio had counsel at that settlement conference and i think what's clear from the record is that very first trial and there but there was an evidentiary hearing should there have been an evidentiary hearing there is no reason for an evidentiary hearing because the issues that were raised by the defendants in their twenty to fifty five petitions were  they were patently frivolous they had no support and i think that the district court really took into consideration that these issues were not raised until five years after the case ended so for example just looking at the settlement conference not there were eight defendants at that settlement conference there were eight lawyers there according to the minute entry not a single one of them during the entire course of the case through the trial through the direct appeal process nobody said julio didn't have a lawyer and nobody said that the magistrate judge did anything inappropriate aside the reason that that settlement conference was not recorded and there is no record of it is because the attorneys the defense attorneys who were there requested that it be held off the record and you and you  that the defendants can and can waive that and it was actually stare hero who requested the settlement conference so i think by attending and by having their lawyers participate there is a waiver so i don't think it was inappropriate  also none of the defendants in that first settlement conference on december first of two thousand and six accepted or rejected a plea agreement nothing happened there i understand that this may not have been one big happy family but for the people who were there in the settlement conference did their interests really diverge serially four of the people that were there where the hearo family  was the the basically the supplier out of mexico and he went to trial so his interests i think were didn't diverge from the horror of family the other three defendants that were there were participants in the conspiracy and they all just on the eve of the first trial in late two thousand and seven they all took plea agreement so i don't think that there were any adverse positions there the second hearing in late january of two thousand and seven so about really about two months later it's clear from the record that the magistrate judge is considering this a continuation of the settlement conference he starts up by asking you know so so what is your position with regard to the plea offers now at the second hearing it's only the harl family that's there so this demonstrates that the plea offers are still open that the defendants are still considering them in fact at that hearing the mother and caroline of the daughter said we're going to take the offers and they say set a change of plea date all the women the women the women yes ultimately or any withdrew  certified issue is focused only on julio and julio gave very different reasons for rejecting the plea ultimately they were according to his trial counsel number one too much time number two i don't like the fo forfeiture term oh and he also thought even though he lost his pretrial litigation he that he still thought he would win a trial now where he didn't say wise i didn't i didn't have a lawyer at the settlement conference what he didn't say w s there was this crazy behavior that terrified me at the settlement conference and so i changed my mind about the plea deal but he didn't say i was i'm not taking the plea deal because i want to global settlement for my family but what he did say was i've changed lawyers during this proceeding because my prior lawyers pressured me to take the plea deal so what we've got is an individual who's not terrified who's thinking through his reasons and they're not the reasons that he provided in the two thousand and two fifty five for rejecting the plea deal and search owes an effective assistance of counsel claim it looks like all we have from his attorneys are responses to government and to roger tories and haven't we in the past at least required sworn statements and are we i mean we're not supposed to determine credibility issues i don't think  certainly it's not an issue that was raised in the twenty to thirty five's and it was not a certified issue on appeal so i would suggest that it may not be proper for the court's consideration there's no indication that anything they said was incorrect or not corroborated what about the amended it is that they mended issues i would move to dismiss those and i did that in my answering brief on page two footnote one in the reason for that is because those issues were not raised in the district court for the court's consideration and in addition at least one of the issues regarding the prior relationship between the trial counsel for sarah or sorry for julio and the prosecutor is purely speculative and there's absolutely nothing in any record regarding that instance the other issue regarding the whether or not sarah hero's lawyer should have gotten a psych evaluation prior to sentencing that was decided on during the first appeal the direct appeal and that was addressed in the court's memorandum disposition i would ask you not to consider those regarding the other non certified issues that have been discovered or discussed today i would ask that if the court were to entertain those issues that it would afford the government an opportunity to respond to those but i also don't think that that's necessary that the defendant the defendants haven't met their burden of proof on any of the  issues i'm checking my notes to see if there were any other issues that came up any questions today i don't believe so if the court has no further questions i would submit on my brief and ask you to affirm oh oh actually no  regarding the double jeopardy issue oh yes just there here i did in my brief request that the court that the remedy be to remand to the district court for the limited purpose of dismissing the conspiracy counts and looking at the case law again preparation for this this argument i i realized that because the district court has discretion to decide which count to dismiss i would ask you to follow the hold a hearing and then for the district court to make a discretionary determination as to which conviction should be vacated and that's in case number over eight one zero one one zero and at pages thirteen to fourteen thank you thank you  on it's this the defendant says he was a deuce by his lawyer to reject the plea and go to trial it also is a case and it's instructive on the issue of affidavits and whether of hearing is required and what it basically holds is that in that particular situation where you had conflicting affidavits the hearing is most appropriate i will say with one thing with respect to the remaining leslie bomb on the attorney who represented honour's and i think that what mr drake might be suggesting is that joint added to the different judge question is it possible that we might need a different venue because of the thickness of all the relationships and there in tucson in this case and beurre also in terms of the different judge may not be able to objective lee distance himself looking at all of the denials that we've had in this particular case and his tone at the sentencing of sergio harrow but the amended issues just going back to that the conflict isn't really speculative as an officer of the court i can tell you that that relationship was there and an evidentiary hearing may be required there was there seems to have been a joint defense in this case which would have warranted other defendants knowing about this relationship the counsel vouched for david kern in the first trial which helped the defense bar lose a dismissal with prejudice in that case there's a record showing real instances of conflict there and then the psychological evaluation that was raised only the ninth circuit level in terms of the appropriateness of the denial but not the ineffective assistance of counsel and the record is clear both by judge perry and the ninth circuit that they blamed mr allen when he fell below the strickland standards in waiting so long to bring that motion and asking the court to appoint mitigating evidence for sergio howell considering the childhood he had be raised by these drug dealers he was so young and he got a life sentence is something wrong with that and i think it relates to these amended issues thank you so much thank you very much for your presentations the case of united states of america versus w is not now submitted