morning and welcome to the eleventh circuit i think you're all familiar with our timing and lighting system i would just ask that you please comply with that obviously if we ask you questions and it takes you beyond your time will make you should go ahead and please answer the question fully we wouldn't ask it if we were interested in your answer but other than that if you would please take the time limits we would appreciate it all right we will begin today with mcafee and verses united states of america one is whether the statements in evidence that were the basis for the s r t revocation could be used in the criminal proceeding that followed that one the other is his sentencing exposure it was that narrow substantive court saying that the fifth amendment the fifth amendment claim would have been unsuccessful and that's defendant did not suffer prejudice as a result as you'll recall from the record that the authorities would be able to access it as you recall the only reason that they were able to access the cell phone was because he provided the p n he was required to provide the pin number that's testimonial like combination to a safe and so therefore that was something he was required to do under his supervised release and that right precisely and that's why the he still had a fifth amendment privilege that could have been a performance art somewhere up we're talking about prejudice where the defendant claims that his counsel performance deprived him of trial by causing him to accept a plea the defendant can show prejudice by demonstrating a reasonable probability that but for counsel's professional errors that he would not have pled guilty and would have insisted on going to trial and the defendant must convince the court that a decision to reject the plea bargain would have controlling case i'd submit court should not upset a plea soley on post hoc assertions that a defendant about how he would have pled but for the attorney's deficiencies court should look instead to contemporaneous evidence proceeding he asked his lawyer will look can we do about this it doesn't seem right that they should make me educated condition of s r t give incriminating evidence and then later use it they anticipated i want a motion to suppress he then has a hearing before the judge a magistrate judge and it ended that position is made clear the magistrate judge's order in the record says the reason he wanted a new lawyer was to follow a motion to suppress that's contemporaneous evidence of his desire to litigate the issue this isn't something after the fact he gets up to prison and so i have second thoughts this is this is at the that's in the record his lawyer then files eight a pro forma boilerplate be grudging motion to suppress because court told me to do and i'm going to do it under the fourth  statements the judge says it at the oral argument on the motion or the argument on the motion to suppress or the hearing on the motion to suppress that you give me an argument what we're hearing have an argument course counsel didn't have an argument because they didn't even never saw the argument never raise the argument well the government then takes the plea bargain off the table says up with him punishes him for trying to litigate the issue a mid range mid range plea agreement mid guideline range sentencing recommendation which was absolutely worthless if counsel that down the guidelines they would have she would have recognized the guidelines and we know that it was bad advice because when a similar sentencing mistake guideline application mistake appears in the p s r months later she doesn't pick it up of course the government c fast on that but but aren't you focusing on the guideline range for the one count for which he pleaded guilty if he had gone to trial he would have faced other counts and possibly consecutive sentences there's the possibility of that of course the stat there's a statute first that says thirty five eighty three i don't that says when sentences are imposed on the same day there's a presumption that they run concurrently and not consecutively so us there's a bias that's gone to under the guidelines the under relevant conduct all of the misconduct in the even in that they dismiss counts was considered in the god mind range three under the grouping rules of the guidelines the conduct would even if he had been convicted of all the counts they would have been group for guideline purposes and if and i think i pointed out that it's extremely rare in the southern district of alabama to have anything other than a guideline sentence for an upward variance extremely rare so sure there's a hypothetical risk but if that's the standard any time there's a multi count indictment and somebody pleads to one count they got a break because they  ed the hypothetical possibility of consecutive sentences that's not realistic and that's not realistic under these facts because the guidelines probably calculated were way below the minimum there's nothing particularly aggravated about it it's a fifteen year minimum mandatory because of the state of ism yet there's a hypothetical jeopardy but it's certainly not the jeopardy that india faced or leave faced if they would have gone to trial los fifth amendment suppression based you know of a fifteen minute base oppression issue had they thought of it at the time now is that the records clear on that that neither of them had the faintest idea that there was a fifth the first three minutes of research on it you know you put in probation in fifth amendment and it that come back to the first case and in its troubled courts i mean it's an interesting the fifth amendment part is really not before the court because the it wasn't decided on performance grounds was the side on prejudice grounds and in response going back to your it to the judges position what's in the record that says that he can meet the burden that that contemporaneous but let me i'm sorry to interrupt by the c e o in this case though it talks about prejudice doesn't not also say and the issues and the issues addressed in the opinion plural and didn't i mean i thought both of your briefs addressed the merits of both of the arguments whether the decision to reject the plea and go to trial or or or proceed is rational or not depends in some way on the merits of the claim that was foregone so viable it's a it's a it's an issue that troubled the courts it's factually difficult it is legally interesting and of course the amendment we're going to give you three extra minutes because hearing after having multiple briefings on this found judge chief judge depose explained the probation officer had reasonable suspicion and the right to search the petitioners foam the reasonable suspicion exists that independently  statement made by the petitioner during the interaction of the home inspection but the problem that may or may not be the case but the problem is that he the probation officer would not done he did have an obligation to abide by the instructions and in fact he did do so we don't know here what probation could have or would have done had he refused to do so but it doesn't isn't that a problem because then we can't we can't say that it was inevitable that it would have been discovered potentially so i mean but at why is that not a problem if we can't say that it's in fact in the district court conclude that it wasn't inevitable and didn't the government concede that they did it in a certain context i believe when you read back through that portion of the evidence you're hearing where the court finds it is not inevitable discovery what she's talking about there in the case that she's relying on is inevitable discovery is almost a savings clause of something illegal was being done and illegal search was being done but it would have been inevitably discovered and therefore almost like a lead on savings clause but the court had just found that there wasn't any violation of the fourth amendment and therefore essentially the way the united states reads it or we read it now or i read it is that the court is saying there's no need for an inevitable discovery doctrine here because i'm not finding that there was any thing wrong with the initial search and tell me then how how would it have been inevitable that it would have been found let's assume that the government was not able to get the pen how would it if in an amicable that it would have been found  assuming the government was not able to get the pen and assuming that there is no other way to get into the phone then the know there would not have been a way to see those images has the government proffered any other way to get into the phone other than the pen not as part of this the lead up to this case no your honor we haven't so at all so it all depends the inevitability argument all depends on the idea that the government would have been able to get the pen yes but your honor there's also the the finding that the court made in the motion to reconsider when she did go through the viability of the fifth amendment claim and in that the court found after addressing minnesota verse murphy that she did not find that the putting in the pill putting in the pin was compelled except so the problem with that that i that i see with that possibly is the timeline the sequence of events the problem is that  well it's murphy and timeline right because if murphy under murphy it says if the alternative to speaking truthfully would be to go to prison for a violation of your supervised release then there's a compulsion to agree with that yes ok so so his argument mr macapp and argument is well when you asked me for the pan that is protected speech under murphy and i want i provided it only because i was compelled to do so because if i did not do so i was going to be sent to prison for a violation of my supervised release for not answering my probation or my probation officers questions and so the only way that the pen is released is pursuant to this compulsion i mean that's what his argument is why is that not the case that was org you before the district court already the court found that it was not compulsion i understand but why that's what were my problem is right because under murphy it's not a factual the only factual question is whether it is whether the alternative to answering the question was going to jail and if the alternative to answering the question was going to jail then there is compulsion it's seems like a legal issue so so i guess my question to you is number one if you think i'm mistaken about that let me know why this is a factual issue and not a legal issue under murphy and number two if i'm not mistaken about that then how is there not compulsion to give the subjectively he did feel that he was essentially the trick bag that he references of having to answer or be a revote the court found based on the language in his in his supervised release condition that that wasn't in object reasonable thing that so here here's the problem that we have a case called robinson in this circuit which applied it which had basically the same exact language and we said in that case that because the compulsion issue was not an issue in that case we said well if you don't answer the questions then you you go to jail i mean that's how it works so in light of robinson which says that under that language if you don't answer the questions you go to jail is it not error for the district court to hold otherwise and walsh the court did not specifically differentiated from robinson i think one differentiating factor between robinson and the kat can be the language it's actually in the supervised release conditions so in robinson the relevant part was to give an account of himself and the respondent completely and truthfully to questions asked by a probation officer whereas somewhat more narrow shall answer truthfully all in crews such as you're not giving a full account of mr everything you're doing but if the but but let me ask you something that the inquiry was can you open the phone can you give can you give the pen so to answer that truthfully he would have to say yes and provide it right how does that take us out of robinson because his alternative is not answering the question and going to jail right yes potentially and the court found out about why is it potential i mean what makes it potential that is a condition of a supervised release and we've said in robinson if you don't comply with the conditions first murphy at least in certain portions disagree with robinson of the fact that you petitioner cannot be forced to give a statement and then go to jail but that is of course what you say in terms of robinson but that could be revoked so don't i mean since we're bound by robinson don't we have to accept that on we're reviewing this i think yes unless we tailor robinson to the specific language that was used in particular but what is what is the distinction like i say i think i could agree with you if for example there were something in the language of the supervised release instructions for mr mcafee and vers mr robinson that somehow relieved mr metcalf and of having two of the idea that he would go to jail if he didn't answer the questions but i don't see that in there i don't see any difference between the language in mcafee and in the language in robinson on that issue yesterday maybe different languages to whether he has to answer completely in truthfully versus just truthfully but the inquiry was asked so i don't see how we also dealing with the issue of could there have been a nother way of getting in the phone while there's been nothing proffered on the record for that there is this is a district court that has listened to multiple cases before she's been on the bench for a long period of time this is not something unusual for the united states to be able to go and get into a phone we didn't need to bring that up or discuss it in this case because it was a non issue he did them to get on the phone but only reason it's a non issue i mean i'm not sure it's not i'm not sure it's a non issue because if your argument is that it was inevitable that they would get into the phone anyway then i think you have to show why that's the case and i'm not sure that's on the record somewhere on the record ok so so that brings us back to why is he compelled under murphy and robinson to provide the pen if he was then we have a problem unless they're it's inevitable that the government would have gotten in anyway so i don't i don't know if you want to introduce the vision of the government has tools and has methods and has used them in many cases to get in before but you're right your honor there is nothing on this record indicating that this is what the steps the probation officer would have taken or the united states would have taken had they not been given permission to go into the phone again that probably was not raised in the record below because it was a non issue at the time in robinson there is once and so i'm curious about whether it has an effect in this case it says the issue is not invocation of the privilege but the failure to report does that sentence have any effect on this case is that any distinguishing feature it's the paragraph that begins the probation officer has an obligation to inquire into possible violations of the probation agreement and then toward the end of that paragraph or probably middle of the paragraph when robinson failed to report these activities completely in truthfully as per the terms of his probation he committed a probation violation and then the sentence that i'm talking about the issue is not invocation of the privilege but the failure to record i think  distinguish between between the i mean how could you fail to report well how could you not fail to report and still not be compelled that i mean that's kind of the issue because in in robinson first let me ask you this would you agree that in robinson no one raised the fifth amendment issue yes ok so it wasn't before the core they were considering it a right ok so how could you fail to report and still not go to jail and i think that i think part of that is that not every single probation violation automatically ands up with revocation that's we have issues all the time where it's brought to the court and that's trails and automatically revoke but but if we're holding that the reason that  that revocation was appropriate was because he failed to report in response to increase which i think would you agree that's what robinson holds yes ok then how could you not fail to report so you would avoid the robinson problem and still not respond to the question about the pen is there a way to do down there maybe there is there may be a way at this very moment i can't think of a way that we do seem to be in a very narrow window here because it is a singular question as you point out before your honor i do want to point out one other issue about viability which is something that mister arguments on deficiency hang on and i agree with mr madden that much of the prejudice problem is also tied in with a deficiency problem because there is a potential of if the attorneys gave up a viable argument that could fall deficient and that goes in as mr arthur a man was talking about the prejudice prong because the defendant could have been prejudiced by his attorneys advising him to plead guilty when he had a viable claim it's our position along with the district court that he did not have a viable fifth amendment claim we had briefing on this this was ruled on by the court and if he didn't have a viable claim then contrary to what was explained before about what went on contemporaneously in terms of whether or not he would go to trial to litigate an issue or whether he would have pled guilty the facts are when mr mcadam believe that he did not have any more viable claim after his fourth amendment argument was rejected by the district court following the hearing two days later he enters a guilty plea so it's our position that that's the contemporary contemporaneous evidence to look at that thought realize that there were once his attorneys advised him he had no viable claim he immediately pled guilty and what we have now here is the district court has said after numerous process and briefings and hearings on this is that this record agrees that there was no viable fifth amendment claim and therefore there was no deficient performance by cindy powell his second defense counsel and he pled guilty and there is no rational reason to believe that if  contemporaneous time when he believed that there was no viable way forward he pled why he would do it now and i think that's where the district court comes down on the deficiency side as well the reason that he did not believe that there was any other way forward is because the council didn't tell him and they had a duty to mean that the it's that simple the whole discussion in in the government's argument is about a hypothetical fifth amendment motion to suppress that had it been filed how it would have played out that's not what's that's not what this court can do we can't try and the fifth amendment issue here although the viability of the fifth amendment claim is relevant to our inquiry into whether or not there was prejudice yes in but not if there briefing says guaranteed success that isn't the standard the standard is whether under the circumstances it would have been the defendant must convince the court a decision to reject plea bargain would have been rational under the circumstances and it would have been rational if he understood that there was a fifth amendment claim here is how it works here is how minnesota versus murray can work we'll have this discussion we'll have a suppression hearing that's based on the fifth amendment and that bits and pieces from a fourth amendment suppression hearing that was on a motion that is is pro forma at best that's that's the problem with with the posture we're in and that's the problem with the way the district court handled the the merits side of the hay vs issue it didn't have a record it didn't have a fifth amendment motion it the issue wasn't litigated and right and we'd like a the district court's order find in that your client was prejudiced and we send this case back and could no coun if this court were to reverse and remain and i think it would be to address the performance prong i think you i don't think that was squarely dealt with in the district court i mean that that's why it might be my preference leaf kind of goes both ways because i don't know if i want to argue about things i don't want to say this court should decide the merits and then say this court doesn't have to decide the merits i don't think the court has to decide the merits i don't think it can i don't think the records right i think you have to consider the merits as to whether rejection would be rational or not so let's say then it goes back and the guilty prepared the issues litigated the probation officer testified which he didn't do at the hay vs the catherine testifies we know what he's going to say we look at the rest of the probation file i mean we we develop the case like it should be to show that mcafee and was compelled to respond to the probation officer i instruct put in the pin and for me to gain access so that issue would be fleshed out in a suppression hearing if if the court determined that the his statements were compelled and that he could therefore assert the fifth amendment privilege to the introduction of his statements and evidence derived from his statements in the grownup proceeding the government then would have to make incision whether they could go forward or not and you have to understand