i've just been advised that the attorney involved in motion is not going to appear and so will take that motion on submission our next case scheduled for argument this morning as united states versus handy fifteen dash thirty one seventy seven thank you good morning may please the court my name is jesse segal i represent the appellant handy in this case mr handy is currently serving a fifteen year sentence that is comprised of a ten year sentence for a drug offen and a five year sentence for a violation of section one twenty four c which is the conviction that's at issue in this appeal and the issue here is whether the district court complied with its  knowingly and voluntarily and as this court noted in us be more tina is ruhleben includes a strict requirement quote unquote that a court inform a defendant is that it's quote essential the court determined by some means that the defendant actually understands the nature of the charges on this case read the indictment write it was r it's correct that this court has held that under certain circumstances or that that may be enough if the circumstances would tend to show that it's enough so i think the correct answer is sometimes it's enough and sometimes it's not enough and our argument here is that here it was not enough because of the nature of the charge specifically that section one twenty four c requires not only that a person possess a gun and that a person having gauged in drug related activity among other things but that the possession of the gun be in furtherance of the drug related something complicated about the notion of in furtherance of to further something i mean what is there there was it was difficult about this year your client had at least a year of college i think isn't that right that's what the record indicates i and he participated fully with conversational responses i mean he said yes he understands here we had the government that who went through an extensive recitation of the number of there were four guns i think found in these cells called stash house one of which was loaded and there was drugs and over ten thousand dollars in cash that were were found there  i found it difficult and he had rented the space right he was and he on the lease that's correct yeah yeah so what what was there that was missing from this that suggests that he did not understand that the court was mistaken in believing that he understood the nature of the charge well the nature of the charge requires some sort of nexus between the possession of the gun and the drug related activity and that was not something that was guns during the time you were selling he said yes i did yes and that in that is actually in and of itself the sort of the thing that jumps out about the way in which this plea was taken the mere fact that a drug dealer as the court is has made clear in i believe it was charges and snow the mere fact that a drug dealer possesses a gun is not handy the requirement was was that the gun in some way further or does he take a position he was actually misled or that it he could have been misled because of the one question i think there were two questions that the court asked that placed the drugs and his four guns including his loaded gun at the same place in the same time and he suggested that he didn't ask any question there was no sense of confusion in the record that i read that they were related i mean the drugs were found in the same place as the guns and the cash and that location wasn't used for other purposes from what we can tell it was rented to serve that purpose as the government laid out at the change of plea hearing so does he is he taking the position that he was actually misled i think the the position that we would that we take is that the go to the court failed to describe the elements of the offense and fail to explain that to sustain too if the case went to trial the government would have to prove each of those elements beyond a reasonable doubt and that in that case i'm sorry i interrupted you in that context the the question to him was misleading and it was in fact misleading and very for did not constitute complying with eleven eleventh's requirement that he understand the nature but the question of which is the word during the drug trafficking crime was preceded by a reading of the indictment which specifically stated that the possession had to be in furtherance of a drug trafficking crime so  furtherance means well i think there would be in fact a jury instruction that would describe what in furtherance means to the jury so in your view i don't think they i'm sorry judge i was going to say your view is that the district court would have to essentially read the elements and read the jury instructions that would be appropriate for a particular charge before as part of a plea allocution well not necessarily but in some way explain what the words in further e meant that that is simply it whether it was in the as in to the length of a jury instruction might be or far shorter way but in some way would have to explain what the words were  way explained to him that the government would have to prove if the case went to trial that there was a connection between the possession of the guns and the drug related activity and he didn't express any confusion about the term in furtheran scene that is correct he had a lawyer before during and after the proceeding right he did although that's a lawyer that he subsequently accused of ineffective assistance of counsel and made some  and said that the lawyer had given him essentially bad information about what the government would have to prove he said in his is his he b s that the lawyer had said to him that they would indictment did contain the elements of the charge the court then repeatedly confirmed that mr hamdi understood the charges his attorney repeatedly confirmed the advise mr handy why wasn't it a little misleading that for the context that was after mr handy had said well you know some of the things the government had said were true some of them were not so the court then asked him what exactly are you disputing and it's important also note that there's a possession i think if you read in context is going towards more just see the way the guns were found there was those are found in an apartment that mr handy had rented they were not found on his person at the time of his arrest and so one of the issues are you that in fact admitting that you possess those guns in relation to two to count five which is the possession of felony possession charge there is no representation made by the court or the government that there mr hand is mere possession of the guns during at the same time used he was drug trafficking was enough there was nothing there is no affirmative misrepresentation here the court was clarifying one issue he was not saying that we don't the government is not to show that this was in furtherance of drug trafficking and those elements were laid out in the indictment mr hamdi confirmed that he knew those that he understood the charge and i think all the circumstances here suggest that he understood what in furtherance met again there's a possession charge he would have understood that mere possession would not have then been enough to satisfy count three which says in furtherance of drug trafficking i mean because they're separate counts are separate counts and so this is there is it would be obvious to i think to a person of his intelligence that this is extra this is another type of crime also he as these guns were kept in close proximity to his stash of drugs is the proximity is proximity enough if that's all that would need to be shown your i think it is one of the court's law i think the current case is where you are in furtherance becomes an a he admitted that this is a place where he stored a large quantity of drugs a stash house loaded handgun was found and he made it was found underneath a mattress he slept on another gun you say he slept on his residence was elsewhere right right but the the evidence found at the stash house show that his personal clothing was in the room with the mattress his pictures of himself were in the in the room of the mattress so there was a basis to to assume that he at some points he would occasionally sleep next to his stash or near his stash and i obviously a gun kept a loaded handgun kept underneath a mattress is going to afford protection one gun was found under the sink in the kitchen and there was there were drugs and money found in the safe inside the stove right and which is you know that also was in the kit in the kitchen right and so again that shows that the circumstances here show how close the case a lot of other circuits show that keeping guns in various locations in a stash house is that is in furtherance and so as far as the the alleged advice that he got from his attorney that he raisins in his heaviest petition as a district court found in rejecting that that was not necessarily unreasonable advice that if you have guns in a stash house in close proximity or in proximity to a owe any deference to any of those rulings or any i mean it's a different question why it's a different question or it's i don't think that that in any way binds this court's assessment of the rule eleven compliance here  but i i would say also looking further afield of the record if you're looking on a plane or you have to go also to the national detention hearing where the government and the magistrate judge made it very clear that what the government was asserting was he was keeping these to protect his stash and this was said explicitly in mr hand his presence and under planner you can look to the entire record to see if if there's any likelihood that he didn't understand what the charges about and that made it very clear and i think that would by itself prevent a finding of plane air am i correct that the keys i'm sorry my corrected the keys to the apartment that he had rented the apartment and the keys to the apartment and to the safe were found we was in the police car was it in that car that he was driving when he was arrested your honor i would have to go back to absolution from this i think i was in his car and then when when he got out there were found on the seat of the car that he was arrested and he was driving towards a drug deal he didn't have a gun on him yet a small quantity of drugs at the time but he did have the keys to the apartment and i think in general i think that that makes a lot of sense if you're a drug dealer you don't carry around your full stash all the time you just expose you to to both to the police and to the potential for theft the drugs are kept in the stash with guns to protect that stash  him at the plea hearing but i think the admitted facts that he's that are on the record here clearly show that he would not have had any kind of viable defense to the nine twenty four c charge  i was not all right this is i preach it is sometimes delicate for the prosecutor to be helpful to a judge who perhaps thinks he doesn't need help but this whole case would hardly if the prosecutor had very politely said judge you did ask him did you possess them during that time could you just clarify that you at those guns to protect your stash you had just had that little charge if you do have to be sure your record is protected you're out of that that's correct i do think that here this is the the court has issued over the last two or three years and our office is very aware of the court prosecutors and that has been conveyed to the prosecutors and we are in our practice now is to have an offer of proof that is filed with the court even in the absence of a plea agreement and then to to make sure that the minutes i think judge newman's point is exactly correct though which is that it was should have been apparent to the government at the time that the question asked by the judge was inadequate to  both inform mr handy what was required and to elicit the appropriate facts and that's precisely required at least were put to rest any question and we are in plain error we feel right that is correct but i mean it's also true that under i believe the case law it's the judge's obligation to inform a defendant concerning the nature of the charges against him a judge taking the plea and in this case there was i mean you know what i've been on the district court panel for over twenty years and it's almost always the case that at a ple the judge will either say what the elements of the offense are as the government to stay with the elements of the offense and that is informing the defendant what's the nature of the charges against him or her and that didn't happen here at  all the government says well you know it was obvious from the original detention hearing but again the judge taking the pleas can't rely on what happened at some other police proceeding to make sure the defendant is informed about the nature  is it means not simply during the same time that you're engaging in drugs but that in some way it gives a drug dealer some sort of advantage i think  the specific languages in the case law whether actual or potential are but but not a loser so the e u s that is proximity enough you know i think the question here is not whether there had this been a trial and had all these facts been a deuce to trial whether that would have been sufficient evidence to sustain the charges the question is did anybody tell mr handy during the plea proceeding what would what was required to that this nexus was required and what that nexus could or might consi and as judge newman's pointed out it could have been very easily accomplished and it wasn't accomplished so unless the court has any other questions thank you i think we have the arguments of recent decision thank you