reuben was also a scholar on the subject of negotiations and judge ruben actually argued that in every negotiation the lawyer owed a duty of fairness to the other side the government must operate that way the constitution the bill of rights due process jurisprudence all require fairness even when it impairs the prosecutor's ability to said one thing creepily did another post plea of sentencing and the government's position is fair or unfair that's just the way that it is the government has to change its mind i'd like to address really change the government admits it did not discover anything new the circumstances did not change post and i'll go over the facts the facts d n a evidence that was before the play that day the d n a they told the kean there is no match we're going to keep investigating but there's no match we don't intend to use it nothing changed remedy the guidelines cometary seem to be the strongest for you but those are binding and they point out the twenty a j letter that no matter what someone says a prosecutor still under thirty six sixty one would have to give this to the probation department so the court's got to find out about it anyway i don't think that the government can hide behind that we don't disagree that the government has a duty to disclose the court relevant conduct evidence unless parent might hear that the government made a representation center belo breach even though the plea on its four corners was met are you saying there is a due process discovery violation here or are you saying it was involuntary for anything other than the defense government says this is a stipulated amount and then they argue for a more correct now we don't have a stipulation in the plea agreement here within the four you mentioned the written agreement the four corners of the written agreement but this court's precedent i clear that i don't like a contract for a plea agreement you can look to and you should look to the negotiations surrounding i have a lot of problems with that you're going to have to give me a good case i will plead terms are themselves a actually went back and looked at kark this court has cited kirk twice for the very same proposition now and the typical case there is no other record evidence of the parties understanding besides the written agreement does that right any every case the ends in a plea has months of negotiations we may dismiss we may do that all sorts of ups and downs it can't be the defendant after pleads and sentences says well on this day you promised this new didn't deliver but in the typical case you don't have an agreement in the briefs the government agreeing that yes we did discuss these things yes we did say it is not a i'm not sure why counsel at the time decided not to do that i will say that there's no dispute that that counsel raised her objection several times there are actually four places in the record where she says this was clearly a breach of our understanding and it rendered my assistance and effective therefore the plea was not voluntary or knowing so let's say a prosecutor does say i we don't yet have it but we're continuing our look and then they just forget because there is no discovery rule then you would agree probation can call the f b i agent say i want to see your whole file and then they have a duty to tell the district what about the murder so it's going to happen anyway whatever inadvertent occurred before no intent whether it was good faith or bad faith whether i just forgot it doesn't matter what matters is fairness and that's an objective standard say are you and ok well the point is fairness representation maybe you didn't mean to say it the way you said it but you said it and everyone agrees that the defendant relied on it no one says that the defendant understanding was unreasonable you know when you change your mind or you find out some new information didn't it didn't really rely on it is when he gets to rearrange and he signs the documents just says there is no other there's no other side agreement and it says you're exposed to any relevant conduct i and that gets back to i think for for purposes of determining what the reason or understanding of the agreement was so it all turns up to discussion get relief at this stage as opposed to ineffectiveness it all turns on kirk being on point  point and the two cases that rely on her for that same proposition state that they got the court may and should look to discussions surrounding the plea negotiations that fairness is so important we we we do not treat the plea agreement the same way we would a contract and a lot of other respects we do but you are not limited here to the four corners thing that stopped predecessor counsel from trying  contest the preponderance of evidence that came right so there's no suggestion in this record that one sentencing got to what it got to he had every opportunity to say the proof the evidence doesn't show be a reason that i should be tagged with a murder  facts here are not in dispute and that gets to the back end because you you said the government never obtain any more information about the murder gould and in their brief they say this decision followed new statements from a cooperating witness may just a few days before the real ring meant that further inculpated mccain and two of his brothers ok that was before the arrangement that was pretty plain well it doesn't say that they necessarily knew about it because it could have been a cooperating witness some other best i mean it we don't we don't know that is  perfectly clear this witness mccaskill i'm sorry but we knew about this but that statement by the pats soon saying we are now so we do know what happened eight days before the guilty plea they speak to cooperating with the mccaskill who said oh the reason you didn't have the globe murder tied up was because he used my gun i gave him my gun then it all makes sense so they've got an eyewitness who explains the ballistics so why isn't that mr mr the prosecutor at the beginning says we didn't a match we may not have it but we're going to keep looking then they look and then all of a sudden macao makes it all make sense they don't make a contemporaneous statement oh we still will present it it really could be they've now just got that crucial piece of evidence at which point there wouldn't be anything misleading the issue would just be do they have a duty to disclose at that moment i don't know that they have a duty free standing independent like a duty to disclose relevant conduct evidence pre  do think that once you have made a representation and you know that the defendant's relying on it you have a duty to correct the misunderstanding of climate point out simultaneous was saying we don't have the match d n a match they did say we're still going to keep looking so it said we don't intend to use the evidence at sentencing ok they don't intend to use it there was lots and lots of evidence as you know because you you've obviously looked at this closely they had lab reports expert reports they had not one one calls they had hundreds of pages of discovery all of this before they got the witness statement you know we can debate whether the witness statement was really a change in circumstances even but my point is because they found this witness statement pre play they had an opportunity to correct a misunderstanding and they did not and that is unfair but the supreme court said the prosecution has no duty what so ever to tell the defense anything about you know sentencing and seeing evidence right away do not wait and not debate whether there is a freestanding legal right to relevant conduct evidence we don't our position is that once the government gives you anything it has to give you everything it doesn't have to give us everything but it has to correct a misunderstanding when it is the source  agreements when it was in writing but don't have a written agreement itself is not the sole source of the parties understanding the government does not dispute that exchange understanding of the deal was reasonable you had here and she accepted responsibility for five shootings and the government says well what about this gold murder in eighteen says i've never seen that man and the government shows him some evidence of the judges i mean i realize it doesn't figure directly in  but you know if you if you if you vacate a plea agreement then what you get well in this in this situation if you agree that there is a breach or even if you agree that there's trial and you know if you're facing life there's nothing to lose well and the judge we know we know we heard you mention is really not palatable because the judge said the sentence in the same way with or without the gold murder the recent thing would be before a different judge why because that's the law in fact this court just last last year in williams i mean it's a law i don't see a reason it saying when you get specific performance if you find a breach of the plea agreement the defendant has the option to either choose specific performance or withdraw his plea and go to trial if you seek specific performance he gets recent single for a different judge under williams and if he goes to trial that's before the same judge but with a jury now for an effective assistance of counsel actually the remediation be tailored to the case and the authority for that is the united states supreme court's opinion in cooper for the time would you are you when that comment by judge the mel about well life anyway that is not right does that  sentencing evidence do you concede that the ruiz decision said that that the which decision that the government has no duty to give any category of sentencing evidence when you do i have i'm not  prepared to say i fully agree with that but i don't that's not our position we're not disputing that there's no free standing independent legal right to sentencing evidence so you know so thank you for time m again i want to stick to the record where possible and when i'm leaving the record all i asked the court's permission to do so in in this is one such occasion where where i'm leaving the record with with the court's indulgence to demonstrate that we in fact did develop additional witnesses after the plea in this case the sentencing hearing they were put on your honor there was a sentencing hearing sort of doubled as both a sentencing hearing and a  murder there were victims offering essentially victim impact statements and witnesses their fellow gang members of the scott brothers testifying to the scott brothers in fact bragging about their role in the  murder so a sort of a hybrid hearing but these are some of these witnesses whether they were identified before the plea i'm i'm not sure and that's not the record your honor but it certainly is the case that they were new lines of testimony were developed they were they were worked with as witnesses the final decision to present them certainly came after the play and that's i think what's lost a lot of this  case sixteen discovery obligation i'm just this one exchange seems to me to be different than the position you took in the brief so the government's position is factually whether the record states it or not that you never developed the evidence to reach a preponderance to present it until after the plea your honor the our position on appeal is that the decision to present this as relevant conduct evidence came after the plea that's don't think so your honor i think the evidence was the witnesses were were were understood the amalgam of the government's evidence was essentially known before the plea the decision however of the government  present this this murder did not come before the plea in fact it couldn't have come once the record support for us to be able to state that you're out of there is very little and that's what's difficult about this because a concern but still i mean obviously if the record could allow that that's much more comforting to me my discomfort with this case is that we would ever assert a rule of law that would say the government can no relevant conduct evidence but simultaneously tell a defendant to plead guilty having said we won't present that we don't have it you know and so my question is are you saying that that is permissible as a matter of law for the government preplan to say defendant we've got nine twenty two g prove that's what you're pleading to but then withhold the fact they know at sentencing they're going to dump a murder on the guy and prove it only to a room a preponderance and get life would that be a legitimate legal your honor well the government could agree to an eleven c one c then the distended the dischord gets it all and they would have money but i think if you could answer my question if you can answer my question you're out of short cycle my question is if the government is and the defendant says i won't plea if this comes in and the government it's not a question of disclosure it's a question of can the government then say i don't have that now without then revealing so it isn't a question of disclosure for me it's a question of can the government make that assertion about evidence in those ads rather i believe so again i with the copyright that i don't think that's the what we have here in the case before us i believe they can there's no free standing duty to disclose relevant conduct evidence and sense of what i believe your honor is asking is is a duty essentially created when the government opened some opens its mouth in the first instance and discusses the possibility of  idling commentary even if it's not binding doesn't encourage that any evidence relevant to sentencing it disclose it does your honor there's also case law from the united states versus johnson is the case i'm thinking of it's an eleventh circuit case from two thousand and fifteen in which the eleventh circuit recognizes that an obligation to inform the defendant of all the facts that could be used to enhance a sentence and i'm quoting here would be overly burdensome on the government and would undermine the goals i didn't authority for this proposition you are telling us johnson and bear but am i correct about johnson and bear in bear the government didn't have the information is that true mr no that's that's ok and in johnson it's a plain error and there is no allegation that the government stated that it didn't that's my concern is that correct that's also correct ok so you don't have authority from the eleventh circuit you arguably do from the ruiz decision but you didn't cite it and and i want to know why because i have concerns about ru responsibility to turn over this material is that this material but justice thomas dissented right in that case he said the majority seems to be saying you don't owe them impeachment material for the crime they're charged in why is there any case that extends ruiz to government doesn't know any sentencing as opposed to what it seems to me to look like two government doesn't owe charge declined evidence because he knows what he's been charged with i don't think it requires honor i don't think we don't hang our hat on who he is because again i think the standards from this court and the prevailing standards from other courts of appeals across the country simply don't impose a duty on the government to disclose relevant conduct information and counsel the intent of the prosecutor really doesn't show up in any of these doctors i do think there's a role for it perhaps i think it be easier for this court to to find that a promise was in fact created if the prosecutor was deceitful or was knowingly withholding information think it might be easier this find on voluntariness what how do we write let's say you're right we affirm but what's the limiting principle what's the stop the government from even more forget they even said the word and it's ongoing they just said we don't have it and we won't but the record reflects they do is there any limiting principle in the law i think the limiting principle is is there your honor is probably on those two those two components whether there was a promise i think the court could read i know there's absolutely in the circuit and elsewhere a possibility for a good faith breach but it happens the court can find a breach despite an absence of bad faith i guess is what i'm saying but it's i would choose heavily relying on the court decision was in fact went the other way i mean that in the district court all to the ultimately ended up receiving the benefit of the hearing but ultimately the fifth circuit recognize that the defendant entered into a plea agreement because of the evidence that was stacked against him in fact that the government never made the promises that that the defendant in fact asserted that the government made it so i'm surprised  fairness goes both ways and here you can scott's asking the court for a benefit of a bargain that really just wasn't made obviously before there can be a breach there has to be a promise and in this case at no point to the prosecutor make a promise what is it at all ambiguous the plea agreement itself when in that in the following sense there was a lot of relevant conduct evidence a dent a fight but not this so wouldn't the defendant if thought oh well this factual basis lists relevant conduct and it doesn't list exactly what the prosecutor said they wouldn't present therefore my understanding of the agreement is there is no other relevant conduct that we can talk about ineffectiveness but at that's not proper agreement that seems to on its face to contradict what the defense attorney was told absolutely that's sounds in the post in effect i think i think you're right there on earth discord is what is willing to engage with the ineffectiveness argument i attorney insists on you know keeping something out of the sentencing proceeding for a fellow anything five hearings and somehow the six that's going to make a difference sounds like the tail wagging the dog things but maybe keep relevant evidence away from the sentencing court you're going to recant it's not a lot of i believe that to see this opinion in which judge clement was a member of that panel precludes us from doing so i think there is there is a little bit of play in the joints about the government cannot withhold facts from the sentence in court the government however is bound to its obligations that it makes the plea agreement with respect to for example it big you know it's urging  essentially discretionary for that because again i find that comforting what's the best case with that only occur in a motion to withdraw the plea with the just court say oh boy this is concerning to me and under the car factors if the government told you this wasn't going to happen well that a usa didn't know about thirty six sixty one he couldn't tell you that but if he did and then you relied on it we have a problem as to your voluntariness and maybe withdraw is that how you see it crime knowing they can get him on a preponderance standard to murder a life that they couldn't prove beyond a reasonable doubt if that happens you were just trying to tell me there is a correction and i'm asking you is the correction the front end that motion to withdraw very plain on its face there's not a single ambiguity in that agreement your honor just a moment ago is discussing well maybe the ambiguity in fact is the fact that the factual basis lays out a bunch of other offenses your honor the factual investigations often remain ongoing even after a defendant pleads guilty such as the case in this case an alternative rule would require an investigation especially to end at the moment of arrai again the possibility that whole line of authority to me is crystal clear you're exactly right the only overlay that isn't right is you can't mislead a defendant that's that's the issue in this case that's difficult for me of course the government can't limit what the district court's going to get and any defense attorney would be ineffective to say can't but the trouble is when the government tells the defendant plead to this we we don't have and present and that's how you described it in your brief last you said that the prosecutor told him i would present evidence of the murder that seems to be your description of what the prosecutor did seems to me in violation of the law requiring him to present your honor i don't want to fall back on blackledge as as a backstop sentencing guidelines i've explained to him what it merely what is merely advisory as your honor has explained to him i believe he understands all of that and i believe that the plea is in his best interest this comes to true but that factual basis list pages and pages of relevant in this if you take judge alito at his word it did not but i mean even in way rick terms of what the man pled of yes your honor his his guidelines was going to be his guidelines with the gold murder was life his guidelines without the goal of murder maxed out at two ten but two hundred ten months but he was pleading guilty pursuant to the to charges that carry twenty years of mandatory time so really the floor exactly for five shootings or other one of which was the mother's i wasn't the prosecuting attorney it was a city like that so it was a sweet deal it was a sweet deal without the golden murder this was this was a sweet deal he was looking again at the mandatory minimum of twenty years in prison and he got but how does that cut that means oh wow if they if it were nefarious they'd be thinking let's give him a deal he can't refuse but then when we get to sentencing will get back everything we wanted to get if there was some something nefarious happening there i agree that cuts against us that's not the case i know it's something case but how do we write a rule that make sure that could never happen i think the rule and again the the rule that intent play the plays in this it's sort of an unspoken bogeyman because it doesn't appear in any of the doc title tasks we're looking at and you but i think you can read it that i do i think again if this court is looking for a promise as a prerequisite to finding a breach i think it it i think it would be reasonable for this court to interpret the government's good faith or bad faith in recognizing whether a promise was made when we're talking about there's there was some action in the reply brief my feeling about this a contract with a contract in writing is you know why should it be treated any differently than any other contract if you can go after you council on the twenty two that you are i agree with you and i just again want the court to recognize what the facts are a lot of the only representation as to what the government promised comes at pages nine o two into tw enty nine in the record where scott's lawyer below writes that the prosecutor said he didn't intend to present the gold murder and now i quote but qualify the statement by stating that he could not guarantee that they would not garner more evidence as the investigation progressed for me your honor it's case closed knowledge that says count there was this is from the mouth from the pen of his trial counsel i think the case begins and ends there and you're out as i see i'm out of the government agrees that there's nothing in the record that would indicate that they found out any new information post plea and the government agrees that it said what we say the government says or said  the government says well that maybe it was just a good faith breach you can look to the government's intent here and no one has said that the government acted in bad faith that's correct i have not asked the court to infer from these facts any ill will  on the prosecutor's part but i don't think intent should matter intent does not matter for instance for a brady violation i doesn't deal with him because the record i don't think into it should matter i don't think it matters whether this was good faith or bad faith what matters is that it was unfair so much then comes down to i think in my mind judge jones this question minute ago which is the police is the plea is the contract and you say kirk respectfully just as we require that the government do things fairly explain and they it wouldn't have been an untimely motion to withdraw the police found before sentencing counsel find they're going to offer the goal of murder after all certainly counsel could government's now begun its oral argument here saying in fact time is post they only got they only develop the intention to present it post but i don't know how that plays out it doesn't matter what they intended they owe it no matter what probation is going to get it  but that's what the government agrees it is said here i mean with you doesn't council have an obligation to know what what is improper and what's not well i think this gets to trust and this is why you know writing an opinion that says the government can do this would be a good thing governments already given his fellow real right down on the charges against him as far as potential  you know sentencing goes why they did that you know but then i mean maybe it was because i just wanted proof of gold by preponderance and that was it but you know that gets surely  the the defense counsel has to be on notice that it is the court's duty to sentence on the basis of all relevant condo that's correct and there could have been even less evidence offered of the gold murder and the court could still have inflicted a life sentence that's correct but the difference here as that the government made the representation that we don't intend to use it so you've got no king pin or plea but the defendant says hey what about the possibility of a murder you're saying the prosecutor should say that's your risk and if the prosecutor had said that everything's clean it certainly would be a different case i mean we agree with that with everything but instead he said oh the d n a doesn't match that may have been a true statement he said but i'm going to keep looking and then that then right before rearrangement they get this flip maybe they're worried about these violent persons are going to kill mccaskill they don't have a duty at that point and the misleading isn't occurring at that point and i think they knew no one disagrees that and jane's understanding was a reasonable one and once you've made a misrepresentation when you have new facts you have to tell him in order to correct the is we only know what because he hasn't filed any thing we only know what his lawyers say your honor i am out of time and i think that the record is pretty clear i mean the lawyer filed three different things on the record and also spoke at sentencing and said that you know this was not a voluntary plea i misunderstood the guidelines range here and i gave him bad advice i mean if if he had known that he was going to face a many murder trial a sentencing he would have gone to trial because he would have had nothing to lose and i don't see did not get it on that on the remedy if you are interested  williams a case decided by this time next year a twenty one of thirty six fifty six and this is judge southwick when the government reaches a plea agreement the defendant has the right to have his chosen remedy accepted either specific performance of the plea agreement and resentencing before