dash one three five three five united states versus henryville oyo and all and we'll begin with the stage good morning in may it please the court my name is gail stage and i represent henry lawyer in this case there are two other co defendants and we have chosen to split up our time i will deal with the maritime drug law enforcement act and mr clue will be dealing with the initially the maritime drug law enforcement act otherwise known and commonly called the m d a is arguably the most expansive grants of extraterritorial criminal jurisdiction in the u code it's objects any individual found to board a vessel that is broadly defined to be subject to the u s law and not limited to u s citizens or residents if used to prosecute drug trafficking offenses by foreign actors in international waters for trafficking drugs that were never intended to reach the united states additionally congress has chosen to take the jurisdictional questions  out of the jury's consideration the issue that that i have raised are three issues relating specifically to whether the act is constitutional  authority by the government that the arguments that we have raised are foreclosed by the prior panel precedent rule and until this is considered on bonk the supreme court steps in  at this point what i would like to do is ask the court if you have any specific questions of me and of the arguments that i raised relating to our position with the  concerned we raised this issue we raised the constitutionality we raised the lexx of lack of nexus we raise the confrontation law issues because we have to preserve them for appeal and we hope that the supreme court will step in and help to clarify conflicts in the various circuits relating to the jurisdictional issue and some other issues as out of the issues that you're going to deal whatever my client he was facing under the guidance three hundred sixty months to life and his sentence was one hundred forty four months is that correct that is correct you know i just want to make sure i w and your client had one more to go to level increase because he was the master captain of the ship and so that's basically the sentencing picture we're looking at before we get to the safety valve yes and he also testified none of the other defendants testified at trial and so it was an additional two levels i don't want to take up missed clues time since you had some time left to do it on your time thank you that's very helpful for the context of where we are in this case just so you know the bailing them out of the boat yes i just one of the court to know that mister lloyd trial counsel did not object to the lack of safety valve for his client probably because of the  leadership role that was put upon him and we did not join in that adoption of our co defendants i care very helpful thank you thank you i think you very much m mr clue good morning since we're dealing with foreclosed or possibly foreclosed issues i thought i might address first the issue of the safety valve then and again as  out it would only be relevant to the mandatory minimum it would not be relevant for the guideline component of the safety valve so that the district judge would have had to apply the safety valve and able to impose a sense even below the one hundred twenty month sentence for the two crew members the the status of the case that it is that it is the binding precedent of this court's gusty oh is that it's going to be conferenced by the supreme court on january fourth it's case number eight hundred three seventy four in the supreme court so i would urge the court to hold off any action on that issue at least until you know that that period of time in the case that the government ha frenchie mean a start petition yes the government that not they haven't got it certainly had on the issue right they have not and that the only reason i suggest that is the government acknowledged in its rip response in the  that there is a conflict they say it's a three to one conflict the conflict is created by the case that we cited a supplemental authority must kara from the d c circuit and the it's being handled by it's a very reputable supreme court practice that is handling the case it's quite possible that sir might be granted in that case in this particular context whereas in other cases it might not be worth holding off in this case it might  described as mr valencia luis valencia i call my client puerto career oh it's a part of kerrville n c and i do want to get to those but the issue that i principally raised that is principally applicable to my client but arguably applicable to each of the clients each of the defendants is the conflict issue this was a particularly problematic case in terms of why in a joint drug operation two identical vessels carrying identical loads of cocaine go into identical destinations very close to each other exactly the same time one is caught first one bogus is captured first that the other boat is captured essentially the next  day they are brought then put on the same coast guard cutter together they are brought into key west for their initial appearance and because apparently the three lawyers were down there the court appointed the same three lawyers to both cases and because the government apparently felt at that time it didn't have what it needed to put them all in one indictment it put them into indictments clearly the error begins there there is let me just speak for myself i i think it is not a good practice to appoint three lawyers for six defendants in two related cases because you could easily see problems arising but how did any conflict actually materialize in this case that prejudiced any of the defendants in this case well i would note that there was a belated garcia motion were for by the government the government eventually acknowledged the conflict they try to characterize it as potential but it was it was real at that very moment even as they're characterizing it potentially even at the post trial stage it was still there and the government acknowledged it the it became very manifest during the trial it exists as a as soon as a major decision about whether somebody testifies or not whether somebody cooperates against the other person or not so did existed at every stage of the trial even of a case even before the trial but clearly at the trial where my client's attorney is the only attorney who says nothing he will say nothing against his other client he will say nothing against the other operation one of the other defendants in this case both of the other defenders in this case their counsel at least cross examined the coast guard to try to say no this drug these drugs came from out of the boat and then one of the other defense counsel argued to the jury you know the government is just absolutely fail to show these drugs came from this boat there's another boat out there this must have come from this boat and the government been and we have is a separate separate issue it's sort of an either or type of issue is that the government then argues yes of course it was a conspiracy of course there together of course it's one operation so that you have you have this fiction that occurs because the government is unsure about the indictment initially and it just sits there and evolves in every normal conflict way all along the process until it explodes into a giant conflict a trial and of course there's no garcia hearing ever filed in this case is a currency of our hearing fallen the other case and there is no waiver ever of the conflict that occurred at trial so it seems clear to me this is just a very simple straightforward case where this should not have happened this defendant clearly you know spanish speaking colombian defendant with no criminal experience it cannot simply be said that he did anything to cause this to occur you know the other issue i thought there was a garcia hearing post trial in this case there was there was a filed in the other case and then all of the defendants were brought together in a joint garca hearing and they were all sitting there together the two cases were merged in one situation one set of defense going to try have a transcript  they may have filed the same transcript but there was a garcia hearing in this case are correct yes yes i don't think i've i just think it's very important to be precise as to what occurred and why it occurred and that is because the government has said that there this hearing should have some relevance to to the trial and it has no relevance to the trial at all it has no relevance to the conflict at trial if it is this were we have we have challenges car that can't be right mr clue i mean you may think it's inadequate and too late but of course it's relevant because your very argument is that there should have been at the very least a garci or hearing pre trial so how can the holding of a garcia hearing post trial not be relevant at all to the trial or because of the very specific nature of the garcia hearing this was not a garcia hearing about anything other then conflicts that may arise going forward other words the magistrate who conducted it and it was not conducted by the judge who conducted the trial who had knowledge of what happened in trials conduct by magistrate who had not witness a trial and the hearing was over and over and over again and it's in the written documents as well as the hearing the conflict is not i waive any conflict that may have occurred over the year that it by i've been represented by this attorney no it never sought that it never addressed that in any way the government didn't seek that nobody purported for that to be the case called the conflict was do you object to any conflict that may arise from here on in so it was all forward looking all forward looking one thousand percent forward looking as to that and i but my mind i still insist and we've argued in our brief that it was completely there's absolutely no conflict you know the words the magistrate in ignorance of the record and in defiance of the record tells the defendant there's absolutely no conflict here when there was an obvious conflict here i want to make sure i understand the record with respect to the blame shifting argument didn't coun make the blame shifting argument even though he also represented a client and the other from the other vessel yes and he has not joined is not one because he is not claiming actual conflict actual conflict right but as there is there doesn't that show that the the blame shifting argument could be made even while representing clients on each of the vessels exactly exactly my point and that is that is exactly what fit what did not occur and that is once you show that that blame shifting argument was there once you have the government then jumping in in what we argue was an improper effort from our standpoint is an improper effort at that point which was not cured by four or four b instruction because it wasn't for a for b once you have that then you have that clear fork in the road is the famous expression the yogi berra expression if you see a fork in the road take it when it comes to actual prejudice in a conflict case what you show to show the prejudice is you show the fork in the road and that's the fork in the road we've got it clearly laid out there was a fork there in the road my client's lawyer chose the fork that said i'm going to protect my other client that's the that's the actual conflict i think that that's well settled is there any other reason that he might have chosen not to make that argument since a similarly situated lawyer did make that same argument without any trouble well i think and i think that's what we cited as supplemental authority the williams case in which judge jordan i believe either author but there could possibly be an explanation of what i see instead is an attorney when you look at the here and you see an attorney who simply not focusing on the conflict he's saying well my client didn't really get to know the other guy until they were on the boat well that's important that he got to know him on the boat  n things happened on the boat the case against mistakes his client is happily proven by what happened on that boat you just represented at the hearing result on me about going forward and representation that i'm reading the transcript of the packaged virtually identical way they go through the similarity between the two bout how there was testimony at trial about whether that was possibly the drugs that were found came from government reef itself i don't know what more i can do to be accurate and forthcoming your honor than to quote the government's budget i not go into the fact that this had to happen at trial at the hearing and asking whether they waived in a conflict only in order to address the representation to say subsequent to the trial the lawyers discussed with their clots about the l the boat and what happened at trial and they all then say that the lawyer said it too they didn't see a conflict i think that's what the lawyers for represented to the court is that correct as they may have been wrong but in the lawyers represent to judge what the magistrate we don't see a conflict i'm not sure my client's lawyer represent us i'm not sure i could say the same for misstatements and then after that then they said we've talked to him in the lockup and then they all the defendants came forward and say they understood and they want to waive and they want to keep their same lawyer your honor there's there is no question that my client said he spoke to the two clients he didn't say he spoke to them separately certainly there was no independent counsel that came in to them he said he spoke to them two of them there were two in the were sitting there together the waiver that my client was asked term in court they spoke trumped for that part of them coming to the hearing i'm not sure that that's that's clear from the record at all on how is it clear that they didn't well it because it's not one question if i could you can go ahead but we've taken you way over your time you can go ahead and answer the question mr clue the record least no doubt whatsoever that the only way for extracted from my client and improperly i might add was the sentencing representation that's it right thank you you've saved your full time for  that morning may it please the court philip de rosa on behalf of the united states i'd like to introduce sitting with me a counsel table mr chris clark who is one of the two trial attorneys in this case i want to just touch very briefly on the sentencing issue about the valve before i go right to the to the garcia conflict issue mr lewis valencia lost the argument right out of the gate because he didn't preserve the issue in the district court so that argument has been foreclosed like all of the india ali arguments with respect to the garcia here in the conflict of interest i take your shoe judge jordan with your observation that it's problematic what the magistrate judge did in key west well let me let me give you this thought and then you can ok tell me why i'm wrong and i may and i may well be if one of these clients in one of the two cases had decided to cooperate with the government against the other five defendants tell me how that plays out at that time it would have been an actual conflict that's why i said there's a potential conflict when you appoint them that way and it could turn into something pretty bad that the premise of your argument is that the magistrate judge knew that that might happen there was nothing nothing to indicate that these cases were related at the time that they all showed up  west if you think that that's good practice and you and i just have a disagreement i'm not saying it's reversible error mr de rosa what i'm saying is that is not good practice especially when we have so lengths in this case below how an actual conflict because his loyalty to the defendant serbia o b eight is valencia no relation in the other case precluded him from pursuing the defense that serbia and his co defendants were responsible for the cocaine in this case and mr clue says that the other defense counsel's pursued this blame shifting strategy but not mr that statement is wholly inaccurate all three of the defense attorneys in this case below helped in one way or another to pursue a consistent uniform theory of the defense and that is that the cocaine seized by the united states coast guard did not come from their clients but came from the other vessel contrary to mr clues claim mr gonzales pursued the very strategy that he is claiming mr gonzales failed to pursued let me tell you how not to be fair none of the defendants in this case put on actual evidence that the cocaine came from the other boat i mean of course they didn't because there wasn't any such evidence it was all by suggestion and the unified defense theory began in opening statements when mr stuart abrams who on behalf of  said he used some analogy that to me was rather opaque but the gist of it was that the government was putting the defendants in the wrong room with the cocaine then mr gonzales on behalf of mr clooney mr cruise kline now an appeal said the that there would be no evidence to show that the diff that the coast guard witnesses saw cocaine packages being jettisoned from the boat in this case he said that there would be no video no radar no ion scans which trace evidence of cocaine to show that these witnesses actually saw cocaine being jettisoned and then mr fog and bomb on behalf of luis felipe the landsea said just because you see water on the ground doesn't necessarily mean that it's been raining during cross examination the order of the witnesses cross examining the government's witness was the same also questions pretty much the same same type of questions even though the coast guard witnesses had said i saw the cocaine being jettisoned from the boat mr cross examine the witnesses and all but called them liars he said you can't be sure that the bills you saw in the water were the same ones that you claim were thrown from the boat because there were no eye on scans of the defendants clothing to have trace in chief mr feigenbaum calls an expert witness who says that the debris field extended three miles from the boat which is not unusual according to the government's bottle the other two co defendants that in cross examine that witness and then  void took the stand and said there was never a cocaine on my boat i just hired these two co defendants to take me to safety from death threats in colombia mr abrams mr gonzales they didn't cross examine him they didn't dispute that account and you go to closing argument by the but that's not blame shifting let me get there your honor i'm not i'm not done yet i want to i want to by the time i get through closing argument you're going to see where they're going with this abrams and gonzales closing merit each other abrams said just because the government shows you cocaine does not make it ours then mr gonzales said he conceded that the cocaine be bales he conceded that cocaine bales were recovered by the coast guard but he said quote they weren't throwing bales off of that boat that's about as close as you can come without actually saying it that the bales that they recover didn't come from this boat that they came from the other boat but why wouldn't you attempt to shift the blame that seems to me to be at best wholly inaccurate because all three lawyers work together to advance the blame shifting theory of the defense and each lawyer in his own way case didn't forego that he went along with the other attorneys and he by his cross examinations in his closing argument he advanced that unified theory of the defense that the government argue in its closing that there was a conspiracy among the no members of both boats the government did not argue the case that there was a consistent overarching conspiracy because the government there was no evidence there was an overarching spirity the only thing that mr clarke said was that there's a connection between these two vessels present what is i mean what does a criminal connection mean if not a conspiracy because in a conspiracy your honor the people on the two different boats would have had to know that they're part of a conspiracy the conspiracy you don't have to prove that they knew each other or that they knew all of the goals of the conspiracy or all of the other coconspirators but at the very least they have to know that they're part of an overarching conspiracy so yes there was a connection you'd have to be blind to see that there wasn't because both of these boats came from columbia they came within a day of each other and that the packages of cocaine were virtually identical doesn't doesn't that well mr big in colombia is sending a whole fleet of boats with cocaine but that doesn't mean that all the people on these boats know that they're part of a conspiracy if the if there is only quote unquote connection isn't that a good reason to appoint separate counsel for all of these individuals when your honor at the very beginning again we have to write an opinion that not only addresses the claims on appeal and resolves among the appropriate standard to review but we want to tell district courts and magistrate judges what they should and shouldn't be doing and my view may not be shared by my colleagues but i'm certainly interested in figuring out whether or not as a prophylactic matter it makes sense to a point the same defense lawyers for defendants whose a legit crimes have a connection but to judge snow didn't know there was a connection when she appointed the lawyers for all in at the same time in key west when when were they all appointed at one hearing the initial appearance yes the initial appearance all six of the defendants from both cases come in a judge now points appoints three lawyers or two defendants per lawyer there's nothing to indicate to judge no at that time that these cases have a connection that connection didn't even become apparent until these defendants put on their blame shifting defense at trial that can't be possible because the government certainly knew there was a connection before the government the government didn't know the coast guard news the government didn't ever met the coast guard is the government mr duros are all fungible your honor yes i was going didn't pass on that information to the people in key west mr de rosa with all respect sometimes the government is held to the knowledge that some of his investigative agencies have you're telling me that if the coast guard believed that there was a perhaps we should have asked more questions of the coast guard i don't know what would cause us to do that by the time the case went to trial what did the government believe is there anything in the record to show what the government thought about these two cases it's not in the record i've talked to mr von rodriguez schock who indicted both cases she had no idea that they were related so maybe we screwed maybe or maybe all no i'm not blaming anybody i'm just saying maybe all the better reason to suggest that district judges and magistrate judges shouldn't do this so that things like this don't arise that's a rhetorical arm for another day and that's something if you want to exercise your supervisory powers until the magistrate judge in all cases like this appoint separate lawyers for everybody that's great i don't have a problem with that when judge snow determined that there was a potential conflict in this case she acted right away and what she did was proper and i can't fault her for anything she did in this case was the other case tried second trial on june june early june and is that case on appeal all the defendants were convicted i don't i don't know if the case on appeal or not so you truth here are ok so it was  in terms of the hearing they were also looking at whether they could continue to represent them going forward in the other case in the garcia hearing because the other people had not been looking forward because the idea was is there a potential conflict here the promise of mr clues argument if there's if there was an actual conflict from the get go and he has failed to demonstrate that he has failed to demonstrate that there was ever an actual conflict so potential conflicts are always forward looking in the magistrate judge took care of that the best way she could there are no other questions also thank you very much is the r you want to see your time to him yes thank you no problem you are sent since i've been seated the time i just want to make one point about jurisdiction the government position is so strained on jurisdiction they would suggest that you don't have to prove a high seas you don't have the jury doesn't have to make a determination that the best was your clue let me stop you for a second mis has laid out her argument and acknowledge that unfortunately for her position right now those claims are barred by circuit precedent she didn't get involved in a substantive discussion of them and therefore mr de rosa didn't have a chance to respond so i think you should stick to the arguments that you addressed in your argument all right the notion that i did something wrong by saying that my my lawyer my clients lawyer didn't try to ship blame to the other boat is just horrific you know it's just horrific to say that he didn't do anything he never mentioned that but the other boat he never mentioned the concept of the other boat  stayed away from it he didn't inquire cross examination anything let me ask you this question mr clue what obligation if any did the defense lawyers have to alert the district court to a possible conflict once they had spoken to both sets of clients well that they had some obligation but the notion the court proceeding from is that is the blind notion that they walked into this in a nano proceeding from any notion but you have all of you are trying to put thoughts and words in my mouth and they're not there i'm guessing i'm just asking a question and my question is you're any criminal defense lawyer who is good in these were good defense lawyers is going to speak to each client at some point after a point i would think that at some point they're going to get some information which maybe is not direct is going to tell them maybe there's a connection that use de rose as word i'm trying to divert because the court's getting into a legal ethical metaphysical question about defense practice no it's not metal it's not metaphysical for example if there is cart of representing john gotti wait mr kaufman he doesn't want to get off the case is the court that want to make the case because it's the integrity of the process it's infected and it's not maybe one defendant has a stronger sway so you can't say for sure what the defense attorney's responsibility is and that's that's my question  clue and it's not metaphysical it's here and now and it's practical my question is what if any and if you think the answer is none great what if any duty or responsibility does a defense lawyer have in this scenario to alert the court of a potential conflict or an actual conflict so that our garcia hearing is held when the government has equal or better knowledge of the facts i think the defense counsel has no obligation i think it's ok orders on contradicting is always advocacy to do that because what you're doing that is inviting the government to flip one of the clients that's why it's the government that funnels these garcia here you know not him there it doesn't necessarily invite the government to flip anybody let nobody nobody flipped in this case my client was was convicted already he was facing you know we're talking about before trial right xander no one's been convicted no one's gone to trial no one has shifted blame or avoided shifting blame i understand the but again if my guess is wrong the point is at the initial appearance there's a complaint the notion that this is some surprise oh my gosh everybody should have been just my god what that they were thirty six hours apart correct the captures were thirty six hours apart the tracking was not the tracking is is what's going on there out there in this it's the same vessel tracking these two boats going to say you know what this is so interesting to me about this case is typically the government what indicted all together but they separated these cases from the get go which was some evidence to me that the government possibly thought because of the frequency of all of just trying to make sure the government you say the government knew had all this knowledge from the get go but then dired them separately and they didn't try out a tribute to your clients the six hundred kilograms on the other boat of the other conduct that did the way they did it's exactly what they did at trial mr clarke has sitting right now but that's because your client one of the lawyers at trial brought up the of the boat the government didn't bring up the of the boat first your client that that's not the government brought up the whole story the government brought up the whole story the government ask questions it wasn't just in cross examination we were the ones who were actually you know impeded to some extent from asking about it the government had t the lawyer for your client at trial that's correct ok and you're representing because i'm about to look that he never said one word about the blame shifting well unless you are going to you know it's a simple question he never said a word about it ok and and if i'm wrong to attack me for it what is that what is that and the basis for attacking me for it is because he said nothing came off of that boat that's that's making me a li say we're not serious case isn't worthless it's not what you're a loon allegations strickler come down lawyers often suggest that their brother on the other side may have gotten something not quite right sometimes they use language that's more forceful you on occasion have used such forceful language no one takes it as a slight i have been everyone is just trying to argue a case to the best of his or her ability litigate against me for for twenty five years were asked i have never i don't think i have ever personally accuse somebody of misrepresenting things in that way i don't think if i have i apologized to everybody and mr de rosa's argument is the way he reads the record is that there were some inferences or allusions by mr gonzales to the other boat is not true hold on and in his view that diminishes your argument that mr gonzales did not attempt to shift blame that's something we're going to have to figure out and i just mentioned that was not argued in their brief either and that's why it's another reason why you have these if you get a personal that make it in the brief give me a chance to respond ok mr glue thank you very much for your argument we appreciate it