the federal defenders office for mr wolf your honour's mr wolf raised a significant questions concerning the voluntariness of his guilty plea he alleged that the plea was the product of threats and promises and by his lawyers that's right your honor and under the standard that this court has set up for getting a hearing mr wolf made the showing necessary to get a hearing there's basically three prongs first the the allegations of threats and promises were not simply concludes rebore rather they were detailed set out in mr wolfe's affidavit the time the place the who what where and when of where the coersion and the promises were made they were not inherently incredible the judge herself when she received these allegations scheduled a hearing ordered the lawyers to submit affidavits and appear for cross examination and finally the allegations were not contradicted by the record mr wolf alleged threats and promises but critically at the  the judge omitted to ask him whether his plea was the product of threats and promises you asked him whether he was pleading voluntarily indeed she did your honor and yes and he did didn't raise any question about that i mean he could've that point said something again in terms of people having the opportunity to raise allegations either at the plea or later it's been made very clear that that's not a determinant factor in said in those cases that on those facts where there was an allegation a detailed allegation of coersion that was not flatly contradicted by the record it was not inherently impossible perhaps implausible but not on its face incredible and unbelievable a hearing at least is warranted not necessarily withdrawal of the plea that's not the relief we're seeking all you're asking for it's a very small very narrow requests for hearings that's right unlike the perhaps more interesting case of this morning this is a pretty narrow straightforward case we're seeking the relief that the judge initially was going to grant but then withdrew and she canceled the hearing based only on the affidavits when she received the affidavits from the lawyers they basically denied everything there like we didn't do that she said ok i believe promise and the coersion and this court has made very clear in their many cases that in our briefs that make clear when there is simply a flat denial where there is a factual dispute they can be resolved on the papers we don't prefer one piece of paper to the other we need a hearing we need new counsel for mr wolf to independently cross examine these lawyers so that the fact finder can make a credibility determination as to who is telling the truth that kind of in person hearing is what the law provides for in this kind of situation and there was a hearing and then your client prevailed at the hearing how would he have used in this case simply be advantage by going to trial as this court has also recognizing the supreme court has recognized that question whether to go it whether to go to trial is absolutely committed to the defendant she may not always make the most strategically sound decision but the right is some role in this here's a situation where there was a trial for two days and the massive amoun plea of guilty to zuma will be admitted against him at one point you know there's the question there would be whether or not i think the plea of guilty could be used against and so i would think his statements in the the hearing and the pleas deemed to have been the product of coercion then he would most certainly would not be admissible against him because of you and he wouldn't be but but his statements in the allocution personal statements which were made and i i don't know but when it testified that these other lone the other the other people testified and the testimony of the case seems you know pretty pretty clear here based upon what she found already and i just wonder whether you know this is he may have a what right to try and press for all claim but i just don't know whether it's really in his interest if you explain to him that it might not be in his interest  i may in fact agree with your honor i can't really think i've told my client but this strategic sound this is not a legally relevant consideration in this context the stand that i'm talking about the practicalities of the situation you know we get we get situations that arise and in various contexts and you know maybe there's a defect of the plead and then there's an anders brief filed and then the question comes up is whether or not it would be just a sound thing for this person to press the play and even though it's even though there may be a non frivolous issue and and that's a good that's a question that's that's discussed at that time have a hearing in at least in part because the declaration by mr worf doesn't say he's innocent doesn't purport to say he's innocent talks about a conversation with  cases where the principal claim is i'm innocent and i made a mistake in pleading guilty in those kinds of cases innocence is actually absolutely relevant in this case the thrust of our communities coersion not innocence and be innocent just like the guilty have the right not to be wasn't george wood within her right to on on the papers given the fact that there had been one sense that there was two days of a trial in which she heard extensive evidence about the defendant's lack of credibility and the fact that he had perpetrated lie after lie in connection with this fraud and to take that into account and discredit his his his representations at th connection with the bow should withdraw not by itself through on or in the first circuit case we cite but then judge bryer he says reputation for truth is not a substitute for cross examination for hearing in the hearing context will have representation reputation excuse me this is not hearing from somebody else what the person's reputation is as a liar she sat there and saw what it saw that it was put to lie after lie a whatever the evidence was it was there was extensive proof on that score and so why isn't she with her right to take that into account take it in a this is this is a waste of time because i know he's a liar and there's no way he's going to be able to resuscitate her she didn't know your honor that he was lying about the allegations as to what happened at that lunch meeting she was not in the lunch room when this conversation was had she was not present for that now clearly she has a feeling as to mr wolf's credibility generally that itself would you then explain just as a follow up to that question and the the answer what the incentive would be for these lawyers to convince lie frankly to mr rove and tell him he should plead guilty rather than the whole trial this is actually something i didn't get into in detail because i don't i didn't think i had to but i'll certainly address it to answer your honor not if you look at the would could have accidents if you look at the affidavits from the lawyers one of the lawyers mr buckley has no mr will for twenty five years in his affidavit it's clear that there's a lot of personal animosity between them in fact they had initially been m in this case when he was indicted in florida they were then put off the case and then came back on of on to the case there's a lot of animosity between them there's also conflicting allegations as to when and why mr wolf decided to plead guilty they both say he was always against the idea of pleading guilty then mr cohen says i heard from mr buckley that he changed his mind and wants now to plead guilty mr buckley doesn't talk about that at all these are things that can be sussed out at a hearing but to answer your honor's question mr wolf alleged they did not thoroughly prepare for the trial they didn't hire the investigator to ask them to they weren't ready to put on a defense so possibly that is a reason why they said look there's a lot of evidence against you we aren't really prepared to try this properly in fact mr butler is not a criminal practitioner plausibly then they said look we have no defense it's better you need to plead we need to get rid of this case and they said mr wolfe alleged they said these are questions to be sussed out at a hearing with things that she says that that bucket told her was that she was going to get thirty years from the judge after major and that she had imposed the maximum sentence on every fraud defendant convicted trial that's capable that's that's capable of being demonstrably proven  demonstrably false and you're suggesting that this is something that likely would have said i mean the whole thing is fantastic to me and speaking of fantastic your honor i will refer the court to the mcgrath case the allegation there was that the judge in chambers brought in the defendant told him to plead guilty and then instructed him to lie in court when the judge asked him has anyone made any promises to you on those facts this court said the person's entitle to a hearing no matter how unbelievable that he for the very same job i would i would think not and certainly in this case and the government has really contested this that to preserve the appearance of justice we would have to have reassignment if we get a hearing and i think mr wolfe has shown his entitlement they may be unbelievable on their face but mcgrath and much of a good match of murder was an allegation the prosecutor came in ex parte and said i'm speaking on behalf of the judge we promise you no more than twenty years if you plead guilty he pled guilty he gets forty years years later he moves to withdraw his plea the supreme court says you get a hearing all we're asking for is a hearing your honor is and we're entitled to it under the law thank you we'll hear from the  they please the court my name is jonathan cohen i represent the united states in this appeal and i represent the united states at trial as well your honour's judge would did not abuse her discretion in denying an evidentiary hearing here she was entitled to reject w those two things together with what judge walker has addressed earlier the first day of trial the laugh learned fry allocution zz on the two plea offers that the government had extended to the defendant and that the defendant rejected mr wolf confirmed that those plea offers had been extended and he confirmed that they had been rejected and it's highly relevant here because he alleges that the plea offers were not communicated and that's a paragraph twenty two of his declaration so he claims you know more than six months after trial that the plea offers were not communicated when he was before a judge would he said something entirely different so that's one example your honour's a well he claims that counsel was ineffective and this is another one of his his allegations and i'm taking those from both his february two thousand and fifteen letter and his june two thousand and he confirmed in this is that a forty six of the appendix that he had an adequate opportunity to discuss this case with his lawyer and he was satisfied with his lawyer and his lawyers representation of him it's also contradicted by is february two thousand and fifteen letter well after trial werewolf wrote and this is at a ninety seven buckley despite having been relieved continued to advise and affectively represent this defendant throughout the duration of this case so this is a second place thought believe he claims that the coersion was during lunch on the second day of trial or at least the heart of the statements but certainly your honor as to the february two thousand and fifteen letter this is this is well after trial know plenty of time to think think about things on the side what he's going to say in these pleadings and he says that buckley is effective in that he also says other things about buckley but he should be held to that statement and it's inconsistent with not only you know that his statement about buckley being ineffective is inconsistent with his february declaration and it's inconsistent with what he told judge wood when she was trying to determine  defendant's attorney who was present for the colloquy in question sort of the accuracy of the defendant's affidavit and we have the opposite situation in it you know we don't have the attorney swearing to the accuracy of the  allegation we have three separate attorneys in detailed affidavits that could test completely what he said so i would say that that's that's that's a first response also in mcgrath i believe for the record the plea was you know on the first day of trial before any evidence so the judge in mcgrath did not have two days of testimony much of which went directly to the defend its credibility i also think that the the  circuit that this court allows district courts the middle road of deciding on detailed submissions which is what we have here without requiring an appearance a t a full blown hearing and we believe that judge would did that here she had not only the three affidavits she had you know statements from wolf on the monday of trial and the wednesday of trial and she had testimony from six witnesses and during one of those witness test you know one of those witnesses on the stand mr pot went to during his testimony we played detail audio recordings of the defendant in the middle of a fraud disagree with mr larson and elegance is highly relevant here first of all in his february two thousand and fifteen letter he does assert actual innocence he does it in two places in that letter second of all under this court's case in do there's three factors that the district court considers one is the length of time between the plea and the motion to withdraw the second is whether the defendant has claimed innocence and and  counsel in the district court did argue innocence on the same very case and so the innocence is very is very you know the claim of innocence is relevant here both because of that three factor analysis is a precondition  the balance and i believe it's factors to be considered your honor in aside from the aside from those contradictions your honor also his claim of confusion and i am right now restricting myself to his own words in this case his own words under oath the judge asked him if he was that the judge asked him is your mind clear right now and he stated in i was a quote and he stated yes ma'am and that's a forty four she asked him as as judge walker indicated earlier she confirmed he was pleading guilty voluntarily she also confirmed that he was pleading guilty of his own free will and that he was pleading guilty because he was in fact guilty and there's a whole other set representation that he that he could change his mind right then and refused to enter a guilty plea to plead guilty and he confirmed that he knew that that he did not have to enter the guilty plea if for any reason he didn't want to and he did not see any confirm that that was the case he didn't say i've been coerced or he discussed earlier if he was being court and he certainly was by this time if you take his affidavit what he said then anything he said would by him being put under oath and speaking to an officer of the court on the bench i think there's a lot of people who even with some degree of coercion or a lot of degree of conversion coercion would would be honest with the court honors that's all i have thank you thank you and you two minutes thank you judge lawyer you asked under what circumstances must a court conduct a hearing this court set out the rule that applies here in the mcgrath case where a defendant alleges that a guilty plea is the product of deceit promise or threat and facts are specifically set forth which support that allegation and which create issues inescapable of resolution by a simple examination of the f and records the court must grant a hearing and that's in the mcgrath case and it's quoted in our in our briefs mr wolf has met that standard here the three factors that mr cohn was talking about are the three factors for withdrawing a guilty plea but this court made clear in consolidates that the standard for getting a hearing is much less than that an individual has to show there are significant questions about the validity of a plea and we've shown significant questions here we've raised these questions we've alleged coersion and we've pledged promises forced the police now these are not absurd on their face if they were the judge would have laughed him out of court she wouldn't have schedule be hearing she wouldn't have ordered the lawyers to respond they were not contradicted by the record because again there was  omission and in the johnson case from march of this year this court reaffirmed we strictly adhere to rule eleven and when there isn't a mission of a certain question in the rule eleven colloquy look very closely and rights are promises indeed indeed he asked are you pleading voluntarily he said yes we've explained in our briefs why that makes sense given the information that he alleges he was given he's like look your choice is plead or go to jail for the rest of your life under that choice he voluntarily chose what he thought was the better option but he was an ass pacifically did this result from promises or threats and the first circuit case that we cite in our brief that which again the government simply ignores as it does all of our authorities the first circuit case supports us on this point as well moreover even if mr wolf had denied any coercion even if he had been asked that question were you promise things were you threatened and said no that would not preclude a hearing and that's because in mcgrath and in davis a two thousand and one case from this court also in our briefs the defendants there did just that they said at the plea i wasn't promise anything i wasn't threatened they then came back alleged