good morning iran is may it please the court i say in mcclaren comes before this court to vacate his conviction for witness tampering which was found in violation of case actually concerns facebook posting and then he goes to trial on this case the argument could be made that he would face additional time i understand that in fact i don't actually believe that that would be the case because in fact both  the agreement and right ok thank you ana but in any event what we're saying because i understand it is that there was a complaint in another case having to do with a drug ring in elmira that was posted in the newspaper article on that case was in the local newspaper on the internet and also on the internet once the complaint that was filed in the court as well as the d e a affidavit in support of that complaint that mentioned that there was a c s one in the c s to my name right not by name although it was certainly revealed in court during the bail hearing by the prosecutor in any event it was certainly suggested i guess if you know the group who would be my client there for that night in a drunken stupor having taken his bipolar medication and alcohol went on the internet found the local article the complaint the affidavit and on the public facebook post it facebook's with respect to the c s y n n c as to thier work communications with others as to who these may be and he with respect to an individual a and i'm only going to speak about the posting as individual way because the information to which he pled only alleged and the allegation as to victim may so as to that as to victim a he on the public facebook posting he writes  shits crazy that fag faggot exploit expletive ass nigga and then the name of the individual a is that c r i won or two suggesting he's not clear which of the two mentioned by the da and in the communications with us others and then he goes on to say facts somebody had or had this nigga in protective custody because if he thing things eat can just pick his daughter up from school and everything's on a be ok he got it coming that sounds like a threat to me to you it is well a threat as to what and that's the issue when we look at the two elements in the statute eighteen u s c fifteen twelve b three and that we need it's a specific intent crime and we need know in kind and we need intent knowingly intention to interfere now when the mr mclaren was asked at the plea hearing what did you understand what were you doing and remember and this is important he's asked this by the district court judge prior to the district court judge reading the information so all the district court judge has now gone through is what basically i've gone through with this court and he says to mclaren what did you do found confidential informants were and i posed to us their names and i threatened them that is correct but number one we have to remember them would be not as to the information charged with victim may do which is clear indication he didn't know what he was pleading to that he was only hadn't read the plea agreement carefully hadn't been really a price of the information which only child victim a so that's one indication he did not understand but he goes on to say when asked more and he said yes these were threat and why and and you did that why i'm sorry eight eighty  eight i honestly i was just highly intoxicated the court did you do it to affect whether or not you were going to testify and proceeding subsequently not to testify just that i never said if you come to court testify and then again on a eighty nine when the court presses him further what did you do and he says yes i'm a threat but what is the threat for threat simply is that your receipt yes he's outing him that is not against the statute and the threat is really not prospective it's the back to you he is know to yes and that's on page eighty ninety i believe it subsequent to the colloquy i was just so yes if the pressed further but when the court looks at whether the plea is voluntary and knowing one has to look at the totality of the plea yet a plea proceedings and if we look at this when he's asked basically what himself what did you do in your own words not in the words of somebody else in the words that somebody has written for you in a stipulation what is your words and he says specifically i just want to because they will see yeses and the fact that you want to saying a fact the fact that the is a c s and as a c s well it's well known that you could be in jeopardy and so based on the actual words themselves they are not a violation of fifteen twelve b three and that's further further supported by the defendants under oath spontaneous response to the court what did you mean by this what were you doing i was just basically saying i'm adding then and because they were c they do as we know faced danger but remember it's the d n a that first that's on the you know on the internet first and the other facebook postings that aren't part of the record that w is communicating about who's the c s one in c s two and clearly he doesn't know that you see the problem counsel is that when asked again you then thread them based upon the fact that they were confidential informants in this drug investigation the defendant yes the court is correct he says yes sir again and that was all done with the intent to prevent them from how ever prior to that where he's explicitly saying the only thing i'm doing is outing them basically which is not contrary to fifteen twelve and remember the threat has to be at least a threat to somebody and this is a public we have absolutely no evidence that in fact this victim may read it so it's not a threat to him directly and it's just out there and now i am not saying that there may not be somebody may pick it up and i think that this is what the magistrate was concerned as well as the judge is clear from his sentencing comments but that's not what the statute says and so the statute very clearly is one that says that it has to be a threat at least to somebody somebody has to understand that they're a threat and that's not clear from here and we know from what the defendant is saying under oath spontaneous what did you do i'm just outing them and nothing about what he says is something that he's saying as you read it may please the court monica richards on behalf of the united states of america good morning well as the court indicated this was a threat this this was a threat to whether recalled a threat to out whether we caught it's witness intimidation it's worse than what something from the sentencing we know this is an intent crime and the district court said even though this is from a one twenty seven even though it sounds i guess in one way innocuous to use a computer it's actually not innocuous at all probably it's more dangerous now because this is as you said that a hundreds if not thousands of people see it and can act upon that even and this is what but probably it's more dangerous now because as soon as you send it out hundreds if not thousands of people see it so he's talking about other people and what they what he may or may not intended with regard to other people i see so he's not talking about you think  and to commit the crime but intent is is what this crime has oh i agree i agree but the intent to threaten the intent out that's already that's in there that's implicit that he is personally acting he is personally threatening he's encouraging he's threatening the family members of this person by saying better not pick up your daughter at school i mean there's things in here that are threats by this gentleman in particular and the intent to threaten as the not the only thing i could say was confused about your honor specifically with regard to the intent to samberg and those words in there again but specifically regarding testimony i think that the rest of it as your honor pointed out is a and part of the elements of the statute are well included that page ninety for example of the record that this was and that intent this was done with the intent to prevent them from continuing with their cooperation that's a statutory element yes sir and you knew that yes sir so i think that there might have been some hesitation or thought on his part was with regard to testimony and inducement or the suppression or the intent influence the person with regard to actually testifying in court but with regard to cooperation it's clearly stated on the record and he does not hesitate when p g ninety for example when he's asked that question so that's the fission for a violation of this you think you think  demonstrates knew he was committing this crime of threatening someone to keep them from testifying i do i don't think it's entirely clear   did you make these threats i'm about peach line five on page eighty nine and did you make these threats with the intent to influence delay or prevent that individual from testifying in a prosecution of those same individuals he says yes sir but then we get some c record in the courts as well you look a little puzzled and so the court has your honors i mean we can get a little color it's hard in the black and white here but and he and he tries to say i didn't mean to get you know testify keep them from testifying in court and again that's where my while the right to language of the statute itself the elements are included in the record in the plea agreement at page seventy one we have the elements and there is a string of actionable elements there is a string of things tend to influence delay or prevent testimony but then there is an or cause to induce any person to withhold test on there's the testimony and or hinder delay or prevent the communication of information relating to commissioner possible but i'm a page eighty nine they do talk to specifically about testifying talking about i'm not i didn't mean show up in court to testify is what he says and then the judge like i said let's take a step back you determine they were they were cooperating right you threatened them based on the fact that they were confidential informants yes sir you're response is yes sir and he doesn't back off from that even though the court says well you look puzzled we continue and we get a series and as judge pooler noted already that we had a series of yes sir after that there were four of them let alone the fact that the judge further reviewed the but then we take them in and we walk back through things and even then at page ninety five in the record he reads from the information which includes that same language to withhold testimony at the bottom of page ninety five he asked them how do you plead and he says guilty there's no hesitation and there's no there's no but i didn't mean to prevent him from testifying thrown in there he pleads guilty and he says and there's further findings that that indicate that the by the by the court that the court satisfied that it was a knowingly and intelligently entered plea and in fact again reviews the entirety of the plea starting at page in ninety seven which again includes that page in ninety nine that he made the threats with intent to influence the lame prevent the individual from testifying in the prosecution and there's no objections there's nobody standing up there's nothing from the defendant indicating otherwise just  and perhaps inconclusive here and that if it's not clear you know the plea we have told this to district courts right but there was no objection here on ars we're mindful of the fact here that we have a somebody and this is review for this court's purposes there's been no objection below all this time throughout this proceeding there are opportunities for the defendant to have made it more clear less muddy and then one could argue he was overboard by the district judge acting sort of like a prosecutor and this this and this and requiring him to answer each one of them the district court seems less like he was engaged in a search for truth and more like he was intent on getting mr mcclure to agree to what the terms of the plea was your honor i'm sorry my time is out if i can answer the question are important question but that's just not the view of the record that i have he asked him from the outside what did you do that's not a prop that's not a cross examination type question at the white open what did you do he said i threatened them i figured out who they were and i threatened them he read also then throughout had the opportunity do you understand the questions weren't the questions were designed to make sure that he understood section i read were very very intense what did you threaten them did you threaten to do harm e s r based upon their rose confidential informant c s r and you believed they were is that is what he did your honor indicated you think something like you said on those posts that is a threat so with respect if i could your honor i will also say that hearing and under the plane air standard if i could that this was a decision that was made based on the pendency the potential for charges with regard to others this was only an information and there were other charges including retaliation which could have been brought which would have exposed to him to a thirty year maximum i saw there was a real decision to be made here with regard to  to go beyond what's been discussed with regard to point one in the brief i'm concerned that something's going to come up in rebuttal with regards to the remainder if there's any questions that the court has with regard to the manger the remainder of the points raised in the briefs i think this was the main issue  have any other questions not on the topic of intent well ok thank you counsel thank you very much irani yes the main issue is the specific intent which we addressed in many different ways within operator but basically let me be clear when he says that he threatened he's adding is that what he's saying he's outing the threat that he's talking about is that the a c s's and that if that was all that we had on the record that might i would suggest however that the words themselves are not within the ambit because they are talking about because you're a c s you should look out not because which is a fact which is a true it does not say because you are a c s you should not continue because somebody is going to hurt you and rather even if for example let's say he didn't continue to cooperate the fact that he was outed he might well b anyway by somebody else we know not by mr mclaren the nobody suggested otherwise because in fact as soon as he became sober the next day within hours after he made the post he took it down and he took down the post before the police contacted him before he was on learned that there would be any concerns by law enforcement so the post made when he was extremely in the braided which maybe it's a specific intent crime and that in a death self may well be a defen we don't i'm not saying that was the end of the parts but that goes to the specific intent of this crime and so what we have here if you look at the weren't alone they sound awful but all of a a threat of future because you should not continue all of the words will vote on a s d which is not a violation of as we know through other twitter that's been in aired being nasty is not a violation of fifteen nineteen b three but when they're that all that this is saying that us is c s could face which is true so our position is that the confusion is supported by what he said and he's telling the court not in court the court's words which is the yes or yes or but in zome words so that's what i asked the court to consider that there was this confusion i also believe that the court was saying in the plea which the court mentioned that he was not that he was not his specific intent not only for others to do harm but for him to do harm and we know that because that once in his intent because he took it right than he didn't do anything he didn't even know of this individual we have no idea if in the future we even saw it if he had a daughter none of that is part of the record we have no idea if he made this up so that has to be considered hearing was somewhat confusing in that the information was not read to him until he'd made admissions it was only after it was read it wasn't until page ninety eight ninety three that the of the information was actually read so his admissions came even before that which may have added also to his confusion and what we have here it's true your honor that solemn declarations in open court carry a strong  and that's from the supreme court case of forty three one us sixty three seventy four and one nine hundred seventy seven the black ridge versus allison but then we can't wait i mean he's also is plain error and that it's very important for this court to correct it where we have somebody pleading to something that it's not clear he understood i suggest that it was not within the ambit of the law it's very important for public confidence in the law of that we correct this error or any other questions thank you counsel thank you we'll reserve decision