to look at and carefully balance the differences between judicial efficiency and overloaded immigration dockets and the record versus the requirements of rule eleven and the constitutional rights of defendants in our border districts i believe this to be an issue of first impression in this court and i believe the government agrees with me in that regard however it there are several cases from the ninth circuit particularly dealing with the district of arizona on this issue so here's what happened mr me appeared with numerous other defendants that anticipated change of hearing you can't tell from the transcript of the records how many defendants were initially present at the change of plea in the audio you can hear the clerk call several names it's hard to distinguish in the audio how many names she's calling but it appears that there's at least between ten and fifteen defendants present at that time the magistrate judge read the defendants collectively their rights and gave them their advi haven't issued any objection to that particular proceeding and advisement is simply that it's an advisement they were advised of their rights collectively all of these defendants in the court room at that point the magistrate asks for the clerk to call the first group of defendants and mr me was in this first group of defendants and at that point mr me ha and three other defendants and their counsel approached the podium and at that point appeal in its entirety and therefore i have waived the right to bring this appeal to this court and to object to the proceeding that was held after that point however i don't believe that my objection to that hearing is simply because there were multiple individuals present at that time it's perfectly reasonable for a court to hold a mass arraignment it's not the fact that there were multiple defendants there at the same time and it's not the fact that there were multiple defendants at the podium at the same time that's objectionable my objection to this proceeding is that rule eleven requires that the change of plea be held that the defendant be advised personally and th needs to determine that he understands his rights so it is possible for a court to have a person personal conversation with a defendant in a setting with numerous defendants present but there has to be a balance between the type of question that is asked and the type of information received from the defendant so that we can understand that rule eleven has been satisfied so here are the things that rule eleven requires the court can i stop you for just one minute and i want to be clear when after the initial question of whether there was an objection to proceeding in a group hearing your client was in a group of four yes defendants after that right yes ok and then listening to the audio it appears that when questions were asked they didn't answer in a group they answered one by one do you agree with that yes ok just make sure we're all have the same facts yes and it appears from the our you know that one two three four mr me when it first although i disagree that the fact that he went first makes a difference but he did go first and it does appear that they answered one two three four ok could i ask about you so there was no objection  you seem to argue that there was error on pages seven to fifteen of your brief and you seem to argue that the third step plain error that is the effect the substantial rights step  was met on page fifteen eighteen but i looking for where you argued the other steps of plane air that is that there was a plane and the fourth step which is miscarriage of justice i didn't see that in your brief and if that's not there we have a waiver problem no i don't believe believe so well first of all is it not there where you say that satisfy two of the essential for steps so i argued that it was a put it that it was the recognized it is plain and this error that it effects substantial rights and there's case law regarding or public reputation of judicial proceedings and i don't see anywhere in your brief where you argued that that prong of the plane air analysis has been that am i wrong well it's  met because i'm not asking if it's mad i'm asking if you are getting brief i identified it in the brief i if i erred in not including more but because it's a plain a change of i think there's anything more important to seriously affect the fairness and integrity of of our court system than ensuring that a change of plea or that the entry of a plea at all certainly that seriously if affects it certainly rule eleven is and the compliance with rule eleven and the defendant twelve minutes and the timing of it is twelve minutes but again it's i'm not arguing that that a change of plea hearing has to be so many minutes long to be effective i'm arguing that the content of it needs to leave the court with an understanding that the defendant understands his plea that it was voluntary that it was knowing that it was an intelligent made that the defendant was competent that he understands the nature of the charge that he understands the penalties and that he can admit that his conduct stablish is a factual basis for the plea now all of that laundry list of things a judge has to be able to determine that the defendant understands and that he is making his plea bargain terry and that it's done personally and so all of those things whether it be four minutes or twelve minutes that's somehow why the the number of the ph at present at the podium that doesn't foreclose the ability to do that but the short amount of time and the massive number of defendants certainly has an impact on the ability of the court to determine all of those things counsel in a relative i have a question about the scope of of your argument are you contending that at a plea hearing a court can never address defendants as a group because doing so isn't quote unquote personal is that we're now about years in the in the rule that isn't an argument you're making no a court can't a district court can certainly have more than one defendant at the podium and conduct a proper  think that's clear i think the ninth circuit has has told us that you are so if it is possible it is not the fact that there were multiple defendants present at that hearing that makes this not comply when you're not you're not challenging anything that happened before they brought the four to the podium and those are advisements and i think that that the court properly advised the defendants of of their rights and that the the court didn't explain to your client how the maximum term imprisonment was calculated you admit that he was told what his possible maximum sentence was he was told that your end was the end do you admit that was correct he was given correct information he was given the maximum the corrected maximum penalty ok and what do you point to that for support for that the court has an obligation to explain to the if and how that maximum sentence is calculated well i think that's an element torres issue and that and that case is certainly been decided by the u s supreme court whether the defendant has to be advised of the sentencing enhanced months and so i think that that issue i don't know that you can do much about that issue but i'll tell you what do you mean by that we can't do much with that issue well i think that element doris and torres about whether the defendant has to be advised about the sentencing enhanced ments that have a different standard of proof which which was which is mr me has concerns about his case but i understood the question was posed you as to whether the the court had some obligation to explain how it got to the twenty years is there or is there any authority that would require the court to say the reason is twenty years is and then he's supposed to on the nature and each of the charges yes maximum penalty is twenty years what more is the court supposed to do and i think and what is the authority you need well the authority is rule eleven to say that the defendant do you have to support the court had to do more than what  the case law comes out of the ninth circuit saying that there has to be a personal connection to the to the defendant that rule eleven requires that the defendant be addressed personally and so there we are talking about that right now we're talking about was the defendant adequately advised about the nature of charge he was told what the charge was and he was told what the penalties were yes and that was sufficient yes you're not challenging that piece of it but the change of plea hearing as a whole there are there were several stages of that there are several opportunities for the judge to determine that the defendant understands what's going what's what's going on here and that his plea is voluntary and that he understands those sort of things but by simply running an autumn metron system of robots who answer yes or no how can the judge determine whether the defendant really was intelligently making a plea and there aren't any finding say that so i think the remedy here is to get input and participation either from the defendant the judge can aspecific questions other than an autumn a trying to robot answer to determine whether this defendant is really participating in in in this hearing with the defendant really understands the nature and the consequences of what he's doing and if that is impossible the judge could still determine make specific findings thank my name is dustin c o v and i'm going to sistine ited states attorney from the district of new mexico the lower court's plea procedure in this case did not violate rule of and or the due process clause the court gave a thorough advisement of rights collectively to a group of defendants and then called mr me here rios up to the podium along with three other individuals for further questioning by posing questions to the defendants and taking their answers individually one of the time the court and the courtroom interpreter both able to ensure that each defendant responded to each question importantly this also permitted the lower court to observe each defendant as they answer each question to assess their demeanor to see whether they were having any issue understanding the question or responding to it as a starting point though mr may hear rio's waived any arguments based on his plea being taken in a group setting this court has said that waiver occurs where a party deliberately considers an issue and makes an intentional decision for go it and it's distinguish waiver from forfeiture and said that forfeiture something that occurs through neglect in this case the court specifically raise the issue of the pleas being taken in a group setting when asked and i quote any objection to my taking these please together and quote because mr ma counsel responded in the negative he waived the issue was specifically put before him by the lower court and he waived the any argument the argument that he now makes on appeal that that setting the fact that his rule  court proceedings the general rule is that the that defense counsel represents the client and makes representation on their behalf that's the general rule there's an exception to that rule in certain circumstances sentencing that have to be able to voluntarily entered into and not the result of of force or threats or or promises that aren't complete agreement that that's the exception because the waiver issue doesn't fall within that exception the defense attorney is able to between the court and council on whether there was any objection did that happen before the judge addressed the four individuals individually yes your honor so there's a collective advisement of rights it takes about three and a half minutes mr materials and the three others are called for to the podium before the court poses questions to them at that point the court asks of counsel any objection to my pleas being take any objection to the pleas being taken to get if counsel had had any issues with the manner in which things unfolded after that the exchange with the fore an objection could have been made at that point  after that but that can't be right can you know your honor it's limited to the very narrow issue of whether there's any objections on the basis of the pleas being taken to get well no i understand but i think that the pellant is arguing that once you just because there's counsel says let's go ahead i don't have objection and in proceeding doesn't mean that that mr he is has waived any any objections that could be lodge plea was taken and groups that objected to to speed with which it occurred given the number of defend its present all the arguments are tethered to well they don't even know how long it's going to take before it happens well counsel certainly you know as been practiced in the district before would understand that he doesn't know how i mean it's he's we have to say he said he knowingly on behalf of his client waives any objection to something that right i do believe so because again the specific issue of the group please being taken together is what's being weight is what's being considered well even i understand your argument but let's assume it was forfeited issue and we're on and we're on plane air so in that sort of circumstances that there can't be clear air can't be clearer parents of the judge but prong one is really i think the place where this appeal should the court find it and then didn't waives argument on one is where i think th decide that that mr me here rios is appeal fails it's important to frame the issue correctly the issue is not whether the plea colloquy was sufficiently personal the question is whether the court conducted the proceeding in such a manner that it can fulfill its ruhleben obligations to advise the defendant and to ensure that his plea was voluntarily entered into the defendant's reliance in their brief on the language sufficiently personal and personal is misplaced you know the text of the rule it's history the amendments and the trim court's decision in mccarthy all make it clear that personally simply means that the court engage in a call that we directly with the defendant and not accept representations but what's the what's the reason for that the reason behind it is there's two reasons behind it one is to assist the court in ensuring that the pleas knowing involuntarily make which requires a real connection right honor but the real connection is made when the court engages directly with each defendant and observes their demeanor as they answer let's focus on the factual basis for the pleas as i understand on that it was  like one paragraph that affected off four of these defendants and it was like fill in the blank of the place and time that you illegally re entered right when it comes when it comes out to be presented to defend it just has to be done before judgment is entered and there's all kinds of cases where during the discussion of the factual basis the defendant saying no i don't agree with that report as i can accept this context these cases are illegal reentry cases they're fairly straightforward charges that aren't all too difficult to comprehend that the individual has been removed from the country before they're president of the states and they don't have legal authorization to be in the united states those are the elements and so when i'm making a factual basis determination the court just has to ensure that what the defendant is emitting to meets the circumstances of the crime there's nothing in the factual n i think the text specifically omits any reference to how these things happen it denotes what has to be said but not how it has to occur and specifically in the amendments in talking about the factual basis the advisory committee notes say they can happen in any number of ways the court can make an inquiry of the defendant the government can proffer the factual basis it can be taken from a plea agreement or a king occur in the language used was otherwise so there's no specific way that a factual basis needs to be presented in this case the police procedure did not did not violate ruhleben and mr materials concedes that group advisement fall by individual individual questioning is sufficient what can occur is what occurred in the ninth circuit and that's where you pose fifty quid you know one question to fifty people they all answer at once you pose one question to five people they'll answer at once and that's simply not the case here again by taking those answers wanted a time in observing the defendant's demeanor the court was able to ensure that their pleas were knowingly and voluntarily entered into and i cited the seven circuits rebuild john case for the proposition that circuit courts are to should defer to that assessment because unlike on appeal the district court is present in person before the defendant and able to assess their demeanor council could you address on the issue of whether the defendant was adequately informed about the nature of the charge whether he should have been advised about whether his prior crimes could contribute to a sentence and handsome and other words instead of just saying the maximum is twenty years was entitled to an understanding of why it would get to twenty years no your honor and here's why in this court's decision and it's said that you know a plea needs to be a knowing and intelligent decision between alternatives proceed to trial or plead guilty and to make that decision a defendant simply needs to know what am i facing a fight what is the maximum penalty you know there's a mandatory minimum what is what is the penalties that i'm facing at trial and then on the other hand they need to understand what does the government have to prove to what does government have to prove a trial to find you know for a jury to find me guilty nowhere in there does it say that a sentencing factor something that affects why the penalty is as high as it is  that's not required to make that decision and that's why that's why why that argument should fail and even if the court were find that that were an error to not inform the defendant about a sentencing factor there is no case law that says that that has to occur and there's no indication that would affect the defendant's stachel rights in this circumstance thank you counsel thank you for your arguments morning case will be submitted and counsel are excused