that this is probably the most people live in any decade if we compiled my argument so how many are if not the attraction about how many are you interview married i know you're going to how many fewer than my friend but you know seventy five or eighty but yeah if you put them all together and i get a full court room ok i'm here for mr draper the issue is where the magistrate judges initiated discussion of a plea offer at the plead hearing violate a rule eleven see one prejudiced mr draper and requires vacation of the conviction this new rape you agree don't you that we're reviewing playing you're absolutely wrong i think that in my brief i agree i think we can win on defendant is there with the intention of pleading guilty without any agreement but that question by itself while i have problems with it doesn't violate counsel so as i conveyed i'm the only offer plead to the indictment prosecutor says well to plead with an agreement to the indictment and with a couple of other things which included a waiver of appeal and at the possibility of a five k again maybe if we could stop there this would be ok with the magistrate judge doesn't stop he keeps bringing the subject up he wants to know why sticking point that is what mr draper did not want that is what was made very clear on the record by his attorney he was iffy on signing a factual basis the day before but he was willing to plea in the course  government's just has to submit a factual basis in the court decides on its own whether that satisfies the statute and the recall go early on mr draper indicated he wasn't sure he had heard about one plea offer it's not that early on it's on record in an appeal eight ninety five he says and this is after the the judge has been discussing with the prosecutor defense attorney i think even at that point they've got too far there's simply no up to this point the judge clark was talking about i think this is where it gets bad at record of appeal ninety five he does say as of right now i didn't know the plea agreement was rejected judge now the context shows he's confused but that's ok at that point maybe the judge not maybe the judge should have said let's take a recess mr wade i need you to go back and talk with your client again because there's maybe there's some miscommunication the context shows that discussion he sees the paperwork he says i don't know was rejected i'm a little more sympathetic to the magistrate here because certainly you do want any judge taking a plea to sort out confusion number one but much more importantly with the supreme court telling re arraignment judges that they've got to find out if offers were made that the defendant might not have heard the whole ineffectiveness world fry magistrates do need to make some inquiry in this you're proposing will they don't so having said that here's my question what rule eleven c you can't participate case would you cite as most appropriate and the reason i ask that is because i read those cases to say you can't tell a defendant i think you're guilty or this is a good deal you better take it none of that happened he was just saying have you heard everything that's what frye says to do ok i would say the least strongest case is miles in which the court said by trying to facilitate a plea bargain the judge indicated he desired an agreement that is pressure enough desired but the magistrate never says i want you to plead here neither did the judge in miles the judge in miles suggesting what he would accept as appropriate sentences in a plea agreement because he had rejected the plea agreement because he thought the government had offered terms of prism if it were to lop and i think if you look at the entire context here when the judge is saying i may ask the prosecution through the court what is the offer that they have like as of right now the sides me signing the factual basis and stuff that i understand if i may you see what i'm saying he's becoming a broker as to whether or not there will be an agreement supreme court suggested was that if it was possible a good practice would be to memorialize police officers so they could do that by the prosecution making them in writing or they could do that filing offers with the court but nowhere does it fries suggest that federal courts are now freed from rule eleven and can be discussing a plea agreement that hasn't been reached that's the problem the only time a federal court the supposed was a plea agreement is when there is an agreement and that didn't happen here mr draper had made up his mind he was coming to court to plead guilty he had rejected the agreement while it's not the court's business perhaps as a prophylactic world under friday you decor can use it supervisory powers might be that's creating in the defendant's mind of mr draper's mind the impression that the judge thinks he's doing something wrong by pleading without a plea agreement because why would we be him from appealing we'll just decide the ruhleben see problem and then you say the best case this is reversible error is miles i think so because i think that by trying facilitate a plea bargain the judge indicated he he is brokering essentially a plea says he should say he says that long before when draper said i've rejected sir and i want to plead guilty sir but by making himself essentially a broker having the prosecutor talk the prosecutor says all we need to get is his refusal on the record there's no authority for that you're wrong that's not a proper discussion at a police hearing i still think eleven see i do think there's some friction with frye but i when i look at the sea it's our that is the judge coercing favoring desirea saying you want to as distinct from saying have you understood everything that's available to you the frye inquiry and it looked to me like this magistrate was just trying to make sure and once a judge says it doesn't prove he's going to consider the recess that was called after the discussion as a mitigating effect that the the fact that the judge is getting involved the fact that the judge is again not coercing it i don't think is quite the test run and i don't think and what are cases say rodriguez says it paying says it is that what's important is what the effect can be on the defendant again and i believe it's pena quoting miles says it's exactly the in determining effect of the judge's desires on what on the defendant's mind that caused the problem so i don't think the let's say the judge says wait i think you might not be an american citizen nothing wrong with a judge saying stop on this old plea go make sure you discuss the consequences of being in erie and because the conviction make you deported that's not participating in the plea that's it's not just being in the plea is participating in plea agreement and you think this so whatever suggestion they made in fry about memorializing office or submitting them as sealed documents to the court does nor abrogate rule levon c and specially to the rule doesn't say that it says that the court shall not participate in plea discussions or something along that line i kinda want to opinions and he's asking you he's not saying let's talk about the terms of the agreement he's just saying are you where you've got an agreement rule levon says the court must not persist spate this court's clear jurisprudence from adams on sat is that when the court starts discussing the desir no i was going says that's the area on it in the court discussed the desirability of a plea agreement to him rather than making sure he knew about it and then as judge begins and pointed out then you don't need to leave the room and don't talk  simulator because he keeps coming back to it and again rodriguez and pena tell us that the important thing is the that we lose the parents and miles as us too we lose the appearance that the judge is impartial because he really carefully and our clients think you know more than we do and usually you do so when a judge clades that seed adult in a man who's come in to say i want to plead guilty i don't think that agreement is a good idea offer that we've now given the terms of in court on the record this is a course and not in a bad way i'm not saying he gets read as the judge says right now he's looking at five years minimum in about thirty minutes he's going to be looking at ten years bringing the plea agreement in that was not on the table has created the sense in him that i don't know what i should do he had made a voluntary decision to plead guilty without an appeal waiver and that was important to him and by having this discussion the judge has planted that sees a doubt he should maybe take it and i think you're not you're not arguing under frye that it's impermissible for the for the presiding judge to judicial participation air here basically the measure judge was only making sure the draper understood that there had been an offer of a plea agreement this case is nothing like any of the cases cited by appellate there's no repeated descriptions of how other defendants have suffered negative consequences like you have when the judge kept bringing up that what happened to the nuttall brothers there was no proposal of the court's own plea bargain as in pain and m paina he was required to settle a civil case before the court would accept the plea miles he it was even more draconian he was forced to accept more convictions with a much higher sentence before the court would would accept the plea there are no comments about enhancement as an in rodrigo's this there were no words of encouragement or words of benefit of how the agreement would help them made by the by the magistrate judge the theory is here that by raising the issue of the agreement multiple times he was encouraging the dream and by inference and mr lynch said that he had made up his mind if he had made up his mind there was quite a lot of confusion that was did demonstrated here and even even the first question asked to to draper's council was confusion in the court yesterday was is there an existence offer and and the council's responses or the other question was whether he'd conveyed all the plea offers and counsel response was it was to plead to the indictment which was wrong that was there was a plea agreement offer  and so the prosecutor said in fact there had been offer and then the court said to mr draper i'm asking you if an offer has been made to you then drape responds oh no sir no sir no offer and then the court said well the prosecutor just said there had been an offer and then i think this was important the court said you don't need you don't need to look at it but i were going to make sure that you've heard about it and you could plead without an agreement or with an agreement  i need to make sure you knew about the rule of it hasn't been revised post try to give a specific instruction on has it though so would you agree with me there is tension between fry and laugh are are discussed in and and i think what what it says there is that that the court should ensure that the defendant knows about the plea agreement  offer in order to foreclose effect of the systems of ineffective system claim and that that that lefferts like contemplate documenting plea offers informing the defense of their terms as long as the courts comments don't go farther and imply that pre a plea would be preferred and i would think fry would only be triggered if there would never be triggered if the first thing that a defense agreement we thought it all through we don't could a magistrate or a district judge still say well let's go over everything that happened to make sure you heard the offers you're telling me of thought about rejected well if and it's we'll get on an easy end and i think that similarly that's what that's what happened in this case if that's injecting yourself into the well if if if if the defense counsel says as you said we thought of a lot but then the defended itself ask questions or triggered by have you committed communicated all plea offer and my question is what in will levin allows you to ask that in this there's some uncertainty first and suggested i think it's required by lefler and fry you have a case that says cases and and they they say they contemplate documenting for you offers and form and attendance of their terms as long as they don't go further and imply that that a that a plea would be preferred again because you both are you many more cases i ever  in the context of answering her inquiries addressing her misunderstandings and ensuring that she understood her choices the questions were not improper didn't cross the line under the rule of the sea there is even further as as judge barksdale mentioned there was also a comment further down the line it did you know about these offers and he says as of right now no i don't i don't know that the pleader was rejected and then and then he says i will accept the agreement and they call recess and  here we have a magistrate judge taking a plea to make a recommendation to the district judge and the district judge accepted the plea you think that plays in anyway and when your review that he wasn't the person that accepted t plea that right and he's of a he's he wouldn't be offending the person who participated by say oh no i have second thoughts i think that would be a factor i actually think that the that the plane air a burden may even be the most interesting issue in this case is plane air burden is showing prejudiced a substantial rights so little the dominguez beneath this case says that you're seeking reversal after a guilty plea a reasonable probability that but for the air you wouldn't have entered the plane and then the more specific double a case the  by his own statements he can't make the showing he says i want my plea vacated up plead guilty without an agreement and instead so he can't meet the davola test or the  career offender guideline in july of two thousand and sixteen and then he said well the henkel decision in august of two thousand six hundred shows that it was an error so the chain of circumstances is if there wouldn't have been an appeal  then without the waiver then i could of reversed the conviction of on appeal at least i could have had a chance to do that but the it you look at the at the even the pretty dava substantial so i think his yes i do i do disagree i think that i think that there is no prejudiced of substantial rights as per guard to the rule live in evidence error causing that in the found important that he didn't mr de lay him plead guilty to three months later so i don't know what if there is a set me answer to your question judge barksdale i think it would i think that we have to look at the judge who intruded and when the plea was entered and here the plea was entered without with the agreement almost immediately afterwards so i think if that cuts any way it cuts in mr gray priest favor i don't believe the record shows mr draper said he didn't know about offers but that he didn't see a small difference but i think a significant one to take it's and i think that maybe there's a difference between commendable and well attention and i think the judge may very well been well intentioned but i think you hit the key point when you commanded plead without a clean off agreement nun's being disclosed to the judge shouldn't be asking about in other circumstances as i said and judged missed last rule levon an actual criminal proceedings have been superseded by the fear of a possible habeas down the road and that's essentially what the government's position would be if we have to clear this up and preclude an effective what is it now ninety percent of all cases my plea i think in federal court something like ninety seven ninety eight percent and ninety percent hurries we don't want court signaling to defend it's you ought to do it at the same time we really fry has told us you absolutely you know you have to make sure a defendant has heard every possible offer and so i'm not sure i diminish the heaviest ineffectiveness side that's a real problem courts are being told to police to make sure the defendant is getting the you know making getting the best deal it was i think they're being told to police it in the way they prize suggest and by following the eleventh and what frye's you just again as i said is that it became a more a lot is that it can be extended in writing and they can be submitted to the court so they're in the record of the court so if there is a b is filed later that's all there but what and see what i love about my experience and lesson district since laughland and friday the government started filing in many cases conveyed all the offers this is creating an environment when one of those is going to come up to us is participating in a plea that will actually give us much more factual what i would hope so but i think the i think he did participate in this plea that the president tells you look at the context the precedent tells you to look at how it might affect the defendant's mind the record shows you can see the workings of mr draper's mind he's saying i'm doing something wrong i'm doing something wrong the judge wants to talk about plea agreements and i thought i was i on the first page of the transcript i plead guilty your honor and for some reason we spent ten more pages talking about agreements the judges you know also as a defense attorney it's hard to see an error when a judge just says counsel go talk to your client that seems like a pretty good player but no thing to do may i ask what if you had that been had that been the beginning we would be fine i don't think i could have written this brief and made this argument if that had happened at the beginning that happens on page ninety nine or one hundred after ten pages of discussion just did you have a question no that's that's all thank you thank you only or thank your case is under submission and mr lynch we noticed that your court appointed and  wish to thank you as always for your willingness to take the apartment in for your good work i'm ha