you please the court and paul nelson on behalf of larry talent and i would like to reserve four minutes for a bottle you may please proceed thank you your honor just tell me is currently serving a thirty five year sentence following his guilty plea failed to comply i guess the way i look at it your honor that essentially it's the same that he you know he was offered a deal but he had to comply with he had to cooperate he did not cooperate so they with record your honor as i saw that that he had made a decision not to follow through and that was the way it was characterized that he was not going to follow through on that original agreement perhaps not continue his cooperation but in any event it well i guess i don't see it an official rejection something in writing saying i reject that plea agreement that either or i think that you start out rejected or well i guess using the or in terms of i guess i use those two words interchangeably that he failed to follow through on the original plea agreement and the only evidence in the record is that his failure to do so he made that decision based on the advice that he had received from his original coun he he made the decision not to cooperate because of advice of counsel yes your honor that's what he did to kate in his motion and that's what he said that his lawyer apparently there was the idea was that he would  agree to cooperate that would allow him to be in exchange for that the government would not seek detention he would be back in a community where he could cooperate at some point he stopped cooperating his lawyer told him that what we'll do we can beat this will file the motion to suppress we'll go from there and i think that he alleges the attorney told him not to cooperate though i believe that was the the statement that he made that was how i read his testimony at the sentencing mr nelson i and now i'm completely mystified about that because let's just assume for purposes of our discussion for a moment that there was deficient performance by an attorney somewhere along the line here the allegations are that it was in connection with not properly advising him as to what he really would have gotten and the strength of a potential motion to suppress that's what i think the record says that's what i thought we were talking that's what it said so let's assume that there was deficient performance there then we move on to prejudice and in order to establish prejudice you have to establish that he would have continued to cooperate and he would have gotten this lower sentence but let's look at what actually happened he enters into this plea agreement then it will which he somewhere in the record says he did so that he could be released on bond so that's why he does then he decides that he's not going to cooperate so he stopped cooperating he testifies falsely at suppression hearing any comments another crime in the meantime now how on earth are you going to show prejudice in connection with the attorney advice assuming that it was deficient well i think the prejudice is that had he followed through on the original agreement done would he i think that was it was his own free will to stop cooperating lie at the suppression hearing and commit another crime you look here didn't make him do that well no lawyer didn't make him do that but he made decisions based on the advice that he was given by his counsel so y he that his decision to commit perjury and another crime is justified by the mis advice about how long a sentence he would have gotten on another charge that's the argument well at that point when he did those things that it's my recollection that he was stood that the pending indictment was the original indictment had been superseded at that point but he made those decisions to follow through with the  this plane that was going to result in him beating the charges and that was based on the fairness verges by virtue of testifying falsely to suppression hearing that you want to hang on the lawyer to know your honor but but the lawyer put him in that position called him the suppression hearing and as he testified that he felt he was sort of i guess i'd characterize it being between a rock and a hard place but again or the prejudice is the the case is say that he's prejudice by the fact that he ended up eventually received a sentence that was five times longer than what the government acknowledges he would have received had he followed through with the original make the decision not to follow through there but the decision was made based on the advice that he had received by his concord his attorney from his attorney as well as the  advice and that was based on the apparent lack of understanding of the potential exposure that he had here but i can sort of understand your position of in a hypothetical sense let's say the lawyer said you shouldn't you should rename gun your plea agreement because now we'll file a suppression motion and i want you to lie and then we'll win the suppression motion and but you don't have enough money to pay me so i want you to go out and commit a crime to earn some money to pay me i  sort of understand your argument in that fanciful hypothetical but there's no evidence here that the lawyer had in the to do with him lying at the suppression hearing and or going out and committing another crime which was in violation of the original plea agreement so how do you show prejudice well again i think the looking at the time when he suffered the prejudice which was when he was facing had lost the opportunity to proceed under the original police agreement as of his own free will right not at the point initially it was that he was not aware of what the potential exposure that he was facing that he was looking at and i believe he testified at the sentencing and i believe it was agreed that they were initially talking about a maximum fifteen year sentence for any case that you can point to suggest prejudice arises out of somebody not doing what they were otherwise going to do and committing no i don't i'm not aware of any but i think that's beyond the point where he suffered the prejudice and our position would be that had he not had he been properly advised at the outset none of those other things would have occurred wouldn't have lied he wouldn't have committed a crime he would have been a good boy had he been properly advised of the exposure well for one thing that had that happened  he followed through there would not have been a suppression motion so he would have had the opportunity to lie about that and again i would point out that the judge at the sentencing when mr telent explained this to the judge in the context of trying to obtain the benefit of credit for acceptance of responsibility he explained that to the judge the judge characterized his testimony was making some bad decisions based on what the advice he received from counsel and then the judge gave him credit for acceptance of responsibility so i think that there is at least implicit in that conclusion by the district court that mr talents explanation of how this occurred had some truth to it so what what is the evidence that you're pointing to that he wouldn't have stopped cooperating and commit another crime or just take the suppression hearing right off the table for a second what the evidence that he would have that he wouldn't have done those things had he been advised differently by his lawyer why i'm not sure that there's any evidence in there other than what mr talent said again i don't  taylor doesn't even say i would have gone out and commit another crime which would have been in breach of the plea agreement right now that's correct and we're we do believe him he doesn't even make that claim well i mean you just want to say i facto because there was miss advice let's assume that there was therefore this prejudice without ever having to get to whether he would have done all of these other things that are what really caused him to lose the availability of the better play right yes ok and you agree there's no authority for that was not able to find any for that specific point but again would point out as we mentioned in our brief with regard to first that this is an issue with regard to interpretation of the plea agreement whether he's allowed to raise this claim at all and whether that was barred by the and also as we indicated not a brief that when the district court ruled that it was barred by the plea agreement but then also addressed what it perceived to be the merits that as we indicated in our briefs that the issues the decisions on the merits are just not correct but we think that's wrong and what should happen here is at the very least it should be sent back to the district court for some from additional fact finding the support if no other reason to have the attorney come in and explain to the court exactly what his role was in all of this and that would now be necessary if we if we assumed deficient performance correct that would know that would not be necessary i think then it would just be the question of the edges of the prejudiced as we indicated and i think the cases show the prejudice from the point of view of going from seven eight years to thirty five years sufficient showing the it please the court peri pyper the united states the defendant testimony at the sentencing hearing where he was ultimately sentenced i think is contained in the transcript pages thirteen o five through the relevant parts are thirteen and don't worry about it let me ask this i just couldn't quite figure it out after looking at cases like this for almost fifty years really your hon that really what was he doing out on the street did you all agree to let him out so that he could what makes them more bizer mr neff in judgement eyes discuss this very issue your honor and there's a debate among prosecutors about whether we should premis our recommendation for defendants released based upon their desire to cooperate personally i've never done that now if says in here that he's done it twice and both times it's backfired in judgment  jokes i guess you've learned a lesson and nephi agrees mr enough agreed that he had in fact learned a lesson so that's the reason why he was out on bond is that mr knapp had agreed to release him if he agreed to cooperate and  so he was supposed to be out developing evidence on other cases or i think she was supposed to be assisting the agents your honor respectfully i think that in the eastern district to see our judges do not allow proactive cooperation for defendant who's already been charged so i think you can go to two locations and show them what's happened and perhaps point out other things in its easier for the agents obviously i know your honor shrugging her shoulders and i probably a meth addict himself horribly so you're on a meth thing is just the terrible situation in tennessee particularly tennessee i guess that's all i was just i couldn't figure out w fantastic prosecutor is it's two times he's done and like he said he's learned his lesson that i think is the court notes i would like to obviously if you let somebody out there's a prospect that they're going to do bad things when they're on none whatsoever so the best argument would be they should have probably known he was going to do bad things because he's a meth addict that's absolutely correct it would've been for better or for mr talent to be remain to be remanded to custody  and even if he had failed to cooperate he would have been in nearly as much troubles the ultimately wound up in assuming all that to be the case then am i right that you still have to link what he did to prejudice talks i think is for it's current would say and his lawyer told him you cannot be convicted of attempted murder because you're shooting below her rights and then i thought there was some dispute in laugh or when you read about it whether the defense counsel actually made that claim i think the defense counsel may have have kind of fallen on the sort a little bit in that case but in any event the this case is so much for remove from laugh floor and that would be as the court noted not only did mr talent lie at the suppression hearing and then later admitted miss box his girlfriend lied and she came in and i looked for a copy of the granger transcript from this box and i could not find it having said that judge matteis noted that he was dissatisfied with her testimony at suppression hearing judge matteis heard the two suppression hearings in this case and for example miss bobs claimed at one of the suppression hearings when she testified that t defendant was her ex boyfriend and in some sense that true because that would be like me referring to my wife as my ex girlfriend she is now elevated another status in this box that actually married the defendant the defendant knows this is going on and not only does he protrude self heal at least awkward yes of this in his then wife pro during her self if if and i think a fair reading is that he suborned perjury so the agreed just notice of his conduct is so paramount in this case that the court would have a difficult time i think saying that regardless of the advice that he got if indeed randy rogers gave him this advice that he is not hosting himself on his own petard or as it were because he is the maker of these situations i would note that mr nelson talks about judgment or you leave that if you define prejudice as mr nelson would that he ended up getting a much higher sentence any otherwise would have gotten he done what he agreed to do this clearly prejudice if you define prejudice as to whether or not he did the things that he did because of bad advice then you may come to a different conclusion so what what authority have you found that would be beneficial to us that would address whether prejudice can be established by virtue of these free will decisions to go out and commit perjury and other crimes i look here on our progress research capabilities and i looked and looked and looked for a similar factual scenario and could find none and that maybe because nobody has raised this issue and not this was this week by the way that i look not one i was right doing all right though because people don't usually get really that may be so your honor that that may be so but i bet people will perjure themselves even if they're in custody so i have not found the legal definition of prejudice based upon a defendant who has in fact committed further crimes including perjury obstruction of justice so i have not found that case and i did look for your honor i noted from the first argument this morning i did note the four port test for the the court was talking about the tenth circuit for miscarriage of justice and i had actually found that case will we have an address that issue i would like to say very briefly with respect to judge mathias in the acceptance of responsibility first he does say that he may have taken bad advice from randy rogers he's not agreeing that it has but i would also ask the court not to even mr naf agreed in a moment of magnanimity to a low end of the guideline range which judgement and i said well i'm surprised because i was going to be more but and i do think that goes to the prejudice argument your honor that even though as mr nelson rightly says and we candidly conceded then and now that he would have gotten far less time had he taken his punishment from the first round came in and cooperated with him but he didn't do that and it was of at least his own making regardless of what mr roger said i can't imagine that mr rogers would have said perjure yourself and then although that's what the defense says in the sense in hearing testimony that randy rogers told and then when say that he waived any claim of ineffective assistance of counsel known to him at the time of the entry of the judgement but if they in ripper who's a very good lawyer in chattanooga and mr talent get up and say hey we know this we winnowed that we took bad advice so unlike the snow we had this morning this is not a case where we're looking at something that happens post sentencing we're looking at something that happened pre entry of the judgment both the defendant and the lawyer that he the defendant has waived this issue and then goes on to explain if you pay had waived it and i've made a rookie mistake and i have not brought judgment tice's order on the twenty five with me i keep things digitally now which is a mistake but he does say that in his memorandum opinion on the twenty two fifty five and i would also note that the defendant has bargained for something while the thirty five years may seem harsh and it is harsh the defendant bargained for something very important in this case and that was i guess sort of off the record i have long believed from my own experience that sometimes the worst thing you can do for a client is to get them all and bond i mean it's just i can't tell you how many times i've told people that but i guess letting that go one thing with regard to this other criminal conduct your honor that currently was or that was pending at the time he was sentenced it's my understanding that the  alleged commission of that additional criminal conduct did not enter into the sentencing decision and again had had mr telent received proper advice at the outset the suppression hearing never would have never would have occurred so i think from that point of view so even if you take off the subsequent crime you take the perjury and the suppression hearing off the table he still was obligated cooperate with the police after he was released pursuant to the terms of the plea agreement and he declined to do do i have that right but he declined to do that yes your honor but the question again is why he declined to do that and  one thing in fact with regard to him saying his testimony that he did not want to that he did not want to in a cab not quoting did not want to or did not intend to cooperate when he first signed a plea agreement that his testimony and page id thirteen zero nine actually what he said was that he was told that if he turned himself in that he would be released and then he turned himself in he was not released he was mad he felt he was lied to and that was when he said i'm not going to do this but that was prior to having to plea agreement so again the plea agreement was the way to for him to get out released on bond as far as the the wilbur is concerned the terms of the plea agreement as we indicated that i mean the government clearly is held to the language that it uses that any that it should be construed against the government if there's an ambiguity in here everyone's talking about in fact the government's brief said that his claim was based on facts that he knew prior to the entry the judgment which obviously is is true but that's not the question the question is whether he knew he had a claim based on those facts and there's nothing in the record that shows that he actually knew he had a claim of ineffective assistance of counsel at that time  again this i think this is a very difficult case i think it's very confusing i think it's probably one that no one seen before and hopefully probably we won't see again and i think that there probably will be lawyers who will be using this case says sort of a lesson for their clients in the future but we would again ask the court either to reverse the decision of the district court or may in this case for an